MINING  RIGHTS 

In  the  Western  States  and 
Territories 


LODE  AND  PLACER  CLAIMS 

Possessory  and  Patented 


STATUTES,   DECISIONS,   FORMS  AND  LAND 
OFFICE  PROCEDURE 


For  Prospectors^  Attorneys^  Surveyors 
and  Mining  Companies 


Bjf  R.  S.  MORRISONxrfrt^  EMILIO   D.   DE  SOTO 
//     Of  the  Colorado  Bar 


ELEVENTH  EDITION,  REVISED   AND   ENLARGED 


DENVER,   COLOR.*  no 


COPYRIGHT,  1903. 

BY 
R.  S.  MORRISON  AND  EM1LIO  D.  DE  SOTO 


Bancroft  Library 

MINING  RIGHTS. 


DISTEICT  RULES. 


Origin  of  the  Mining  Districts  and  District  Rules. 

In  the  earliest  mining  camps,  before  the  admis- 
sion of  California  as  a  State,  and  before  the  organ- 
ization of  any  of  the  Western  Territories,  a  system  of 
miners'  laws  had  been  established,  the  outlines  of 
which  have  been  the  basis  of  all  subsequent  legisla- 
tion. 

The  country  was  divided  into  "Mining  Districts," 
some  less  than  a  mile  square  and  others  quite  ex- 
tensive, which  have  become  permanent  geographical 
divisions,  and  take  the  place  of  townships  and  sec- 
tions in  describing  the  situation  of  real  estate  of  all 
kinds  in  the  mining  counties. 

Each  Adopted  a  Separate  Code  of  Regulations, 
and  elected  a  Recorder,  who  kept  a  record  of  claims 
and  transfers;  and  usually  a  judge  and  other  officers 
who  carried  out  the  mining  rules  and  also  enforced 
the  decisions  of  the  jury  of,  miners  or  the  miners' 
meeting. 

CONTRACTIONS. 

R.  8. — Revised  Statutes  .of  the  United  States. 

A.   C. — Act  of  Congress. 

L.  D. — Land  Decisions  of  the  Interior  Department. 

M.  A.  8. — Mills'  Annotated  Statutes  of  Colorado. 

Rule   or  L.   O.   Rey. — Land   Office   Regulations. 

If.  R. — Morrison's  Mining  Reports  (Vols.  1-16  printed. 
Vols.  17-20  in  press).  The  original  volume  frotn  which  the 
reprint  was  made  in  the  Mining  Reports  is  given  in  the 
TABLE  OF  CASES  CITED. 


4  DISTRICT  RUI.KS. 

The  written  regulations  usually  first  defined  the 
name  and  boundaries  of  the  district;  second,  the 
number  and  kind  of  officers  to  be  elected  from  time  to 
time;  and  then  proceeded  to  designate  what  number 
of  feet  should  constitute  a  claim  in  that  district,  the 
amount  of  surface  allowed,  the  amount  of  work  re- 
quired to  hold  a  claim,  etc.,  and  sometimes  extended 
further,  to  the  mode  in  which  mining  controversies 
and  other  difficulties  should  be  settled. 

These  district  regulations  have  been  with  general 
uniformity  recognized  by  the  Territorial  and  subse- 
quent State  Legislatures  and  are  specifically  men- 
tioned in  and  approved  by  the  Mining  Acts  of  Con- 
gress beginning  with  the  first  Act  on  the  subject  in 
1866.  When  not  in  conflict  with  statutory  law,  espe- 
cially in  cases  arising  out  of  the  early  discoveries, 
they  may  still  be  regarded  as  in  force  and  occasion- 
ally important.  They  are  supposed  to  be  filed  at 
present  in  the  office  of  the  County  Recorder,  and  a 
search  among  them  is  sometimes  necessary  to  the 
lawyer,  and  always  refreshing  to  those  who  are  curi- 
ous in  regard  to  pioneer  customs. 

In  instances  the  district  constituted  a  municipal 
subdivision  so  distinct  that  the  custody  of  the  rec- 
ords was  never  transferred  to  the  County  Recorder, 
and  the  laws  as  well  as  records  of  claims  were  kept 
in  his  office  alone. 

Scope  of  Their  Legislation. 

This  system  of  the  miners  throughout  the  rest  of 
the  Pacific  slope  and  in  the  mountain  States  gen- 
erally, was  moulded  upon  customs  already  established 
in  California,  and  many  of  the  California  mining 
rules  were  identical  with  provisions  of  the  Mexican 
law. 

The  subdivision  of  a  vein  or  deposit  into  claims; 
the  allowance  of  an  "additional  claim"  to  the  discov- 
erer; the  staking  of  claims;  the  requirement  of  a 
discovery  shaft;  forfeiture  for  neglect  to  work,  and 


DISTRICT  RULE'S.  5 

various  other  prominent  features  are  found  to  be  set 
forth  at  large  in  the  Spanish  code. 

But,  in  almost  every  State  their  day,  practically, 
has  ended  and  given  place  to  uniform  legislation; 
and,  notwithstanding  their  recognition  in  Acts  of 
Congress,  they  seem  to  be  always  made  subject  to 
State  or  Territorial  laws,  and  void  when  in  opposi- 
tion thereto. 

From  the  defects  of  these  original  regulations, 
and  the  want  of  an  exact  and  uniform  mining  code, 
sprang  many  points  of  litigation,  for  which  the  min- 
ers had  only  themselves  to  blame.  In  some  districts 
lawyers  were,  by  these  laws,  forbidden  to  reside  or 
practice. 

Instances  of  Their  Form  and  Contents. 

The  rules  of  the  various  districts  being  more  or 
less  uniform  in  their  mode  of  expression,  and  in  the 
matters  regulated  by  them,  we  give  a  citation  of  rules 
from  sundry  districts  from  which  some  idea  of  their 
scope  and  intention  may  be  formed: 

Boundaries. 

This  district  shall  be  defined  and  bounded  as  follows  : 
Commencing  at  the  head  of  the  canyon  on  the  Las  Animas 
River  at  the  lower  end  of  what  is  called  and  known  as 
Baker's  Park,  and  thence  running  east  to  the  summit  of 
the  main  dividing  range,  and  then  following  said  range 
around  so  as  to  include  all  the  waters  of  said  river,  to  the 
place  of  beginning. — Art.  2,  Las  Animas  District. 

Size  of  Claims. 

All  claims  made  on  lodes  by  discovery  shall  be  200 
feet  long  and  50  feet  wide  ;  all  pre-emption  claims  100  feet 
long  and  50  feet  wide  ;  all  discovery  claims  on  patch  dig- 
gings shall  be  100  feet  square ;  pre-emption  claims  100 
feet  square  ;  all  discovery  claims  on  gulch  diggings  shall  be 
100  feet  long  and  from  bank  to  bank  ;  pre-emption  claims 
shall  be  the  same ;  all  water  claims  and  steam-mill  sites 
shall  be  800  feet  long  up  and  down  the  stream,  and  150 
feet  wide  ;  all  claims  shall  be  taken  by  numbers,  commenc- 
ing at  the  discovery  and  running  each  way. — Art.  8.  Grand 
Island  District. 

Value  of  Labor. 

There  shall  be  allowed  for  a  day's  labor  on  all  lodes, 
the  following  prices:  For  working  in  loose  rock  and  earth, 


6  DISTRICT  RULES. 

twelve  dollars  per  day  ;  for  hard  rock,  such  as  will  require 
powder  and  drills,  sixteen  dollars  per  day. — Resolution  3,  Las 
Animas  District. 

Lode  Notice. 

That  all  notices  on  lodes  be  written  in  plain  English 
and  posted  in  some  conspicuous  place  on  the  lode. — Resolu- 
tion 8,  Las  Animas  District. 

Sheriff. 

It  shall  be  the  duty  of  the  Sheriff  to  serve  all  papers 
issued  by  the  President,  and  to  be  a  General  Peace  Officer. — 
Art.  6.  Coral  District. 

Water. 

In  all  gulches  or  ravines  where  water  may  be  scarce, 
the  oldest  claimants  shall  have  preference  and  priority  of 
right  to  water. — Art  5,  Downieville  District. 

Fictitious  Locators. 

Be  it  further  enacted,  that  no  claims  shall  be  re- 
garded as  valid,  pre-empted  or  recorded,  in  fictitious  or 
false  names,  nor  by  persons  not  residents  of  the  Territory, 
except  the  same  are  made  in  good  faith. — Sec.  13,  Lincoln 
District. 

Forfeiture. 

Any  person  absenting  himself  from  this  mining  region 
twelve  months,  shall  forfeit  his  claims,  except  when  they 
are  represented  by  an  agent. — Sec.  Vt,  Iowa  District: 

Old  Debts. 

No  suits  shall  be  brought  in  the  miners'  court  for 
indebtedness  contracted  in  any  other  State  or  Territory, 
except  by  consent  of  all  the  parties  interested. — Sec.  9}  Ban- 
ner District. 

Duties  of  Recorder. 

It  shall  be  the  duty  of  the  Recorder  safely  to  keep 
the  records  of  the  district,  and  to  record  all  papers  upon 
the  payment  of  his  fees.  To  act  as  secretary  at  all  pub- 
lic meetings  of  the  district,  and  by  virtue  of  his  office 
as  Treasurer,  to  keep  all  moneys  of  the  district  paid  to 
him,  subject  to  the  draft  of  the  President ;  also,  to  keep 
all  vouchers,  so  that  at  any  time  he  may  be  able,  when 
called  upon,  to  exhibit  the  financial  condition  of  the  dis- 
trict.— Chap.  5,  Sec.  1,  Griffith  District. 

Murder. 

Any  person  guilty  of  willful  murder,  upon  convic- 
tion thereof,  shall  be  hung  by  the  neck  until  he  is  dead. — 
<11i  a  p.  16,  Sec.  1,  Id. 


DISTRICT  RULE'S.  7 

Larceny. 

If  any  person  or  persons  shall  be  guilty  of  stealing 
any  property  whatever  in  this  district,  and  he  or  they  be 
found  guilty  by  a  majority  of  a  jury  of  twelve,  chosen  to 
try  his  or  their  guilt  or  innocence,  he  or  they  shall  be  sen- 
tenced to  immediately  restore  the  property  stolen,  and  pay 
to  the  party  injured  all  damages  sustained,  directly  or  in- 
directly, in  consequence  of  the  theft ;  and  in  case  the  guilty 
party  shall  not  so  restore  and  make  good  all  the  damages  as 
aforesaid,  the  injured 'party  may  take  sufficient  property  of 
the  defendant  found  in  this  district,  to  satisfy  all  dam- 
age, and  dispose  of  it  in  any  way  he  may  deem  proper  ;  and 
the  defendant  shall  also  be  banished  forever  from  this  dis- 
trict, and  he  failing  to  leave  immediately  on  notice,  shall 
receive  not  less  than  five  nor  more  than  twenty-nine  lashes, 
and  in  case  the  value  of  the  property  stolen  be  over  one 
hundred  dollars,  he  shall  be  hanged  by  the  neck  until  he 
is  dead  ;  the  injured  party  may  proceed  to  retake  his  prop- 
erty and  remunerate  himself  for  damage  sustained  as  above. 
— Art.  9,  Lower  Union  District. 

Attempt  to  Regulate  Annual  Labor. 

Such  regulations  as  the  foregoing  Resolution  3, 
of  Las  Animas  District,  are  manifestly  void.  The 
United  States  law  requires  a  certain  amount  in  value 
of  labor  or  improvements,  and  this  value  can  not  be 
lessened  by  an  arbitrary  scale.  They  might  with  as 
much  reason  have  fixed  at  once  a  single  foot  of  sink- 
ing as  the  full  equivalent  of  the  $100  required  by  law. 

The  Act  fixes  both  the  amount  and  the  period  for 
its  performance.  A  district  rule  requiring  labor 
every  sixty  days  is  void. — Original  Co.  v.  Winthrop 
Co.  60  Cal.  631.  But  a  careful  reading  of  R.  S.,  Sec. 
2324,  would  seem  to  allow  a  district  rule  to  increase 
the  amount,  though  it  can  not  lessen  it. — Sisson  v. 
Sommers,  55  Pac.  829;  Northmore  v.  Simmons,  97 
Fed.  386. 
New  Districts. 

Even  before  the  passage  of  the  Mining  Act  of 
1872  in  many  localities  the  district  organizations  had 
gone  into  disuse  and  the  tendency  since  the  Act  has 
been  towards  their  obliteration.  Where  new  districts 
have  been  formed  their  action  has  usually  been  lim- 
ited to  giving  a  name  to  and  fixing  the  boundaries  of 


DISTRICT  RULKS. 

the  camp  or  district,  and  any  attempt  to  revive  old 
or  enact  new  district  rules  in  any  State  or  Territory 
which  has  any  pretense  of  a  mining  code  would  only 
tend  to  confusion. 

Although  the  organization  of  the  old  districts  has 
ceased  to  he  maintained,  their  names  and  boundaries 
still  exist  to  be  used  in  location  certificates  and  deeds 
as  descriptive  of  the  locality. 

Unorganized  Districts. 

A  mining  title  may  be  proved  without  either 
district  organization  or  proof  of  district  rules. — 
Golden  Fleece  Co.  v.  Cable  Go.  1  M.  R.  120. 

Where  land  office  or  other  forms  contain  a  blank 
for  the  name  of  the  mining  district,  and  no  district 
has  ever  been  formed,  it  is  usual  to  fill  such  blank 
with  the  word  "Unorganized."  And  there  is  no  doubt 
that  a  mining  district  may  exist  to  the  extent  of  giv- 
ing a  name  to  a  locality  and  to  that  extent  only,  and 
such  name,  when  adopted  by  common  consent,  is  as 
valid  as  if  adopted  at  a  district  meeting. 

The  term  mining  district  has  a  well  known  mean- 
ing, while  the  term  mineral  district  is  only  a  vague 
and  indefinite  generalization. — U.  8.  v.  Smith,  11 
Fed.  487. 

New  Districts  in  Alaska. 

The  Alaska  Act,  31  St.  L.  328  (post  ALASKA;,  rec- 
ognizes old  district  organizations,  provides  for  new 
ones  and  contemplates  the  passage  of  district  rules. 
Upon  the  organization  of  a  district  the  minutes 
of  first  meeting  should  show  that  it  was  called 
by  public  notice  and  attended  by  a  majority  of 
the  miners  either  personally  or  by  representation; 
should  define  boundaries;  elect  permanent  Chairman 
and  Recorder;  restrict  size  of  placer  claims  in 
crowded  diggings,  leave  lode  claims  to  the  full  size 
allowed  by  the  Act  of  Congress,  and  make  special 
provision  for  the  keeping  of  permanent  and  acces- 
sible records. 


DISTRICT  RULE'S.  9 

Judicial  Decisions  as  to  District  Rules. 

Where  in  ejectment  for  a  mining  claim  the  plain- 
tiff has  described  the  same  as  located  under  district 
rules,  he  may  recover  without  proof  of  the  existence 
of  such  rules  by  evidence  of  his  prior  possession  and 
the  entry  of  defendant;  but  if  his  prima  facie  case 
on  possession  is  negatived  by  any  title  proved  by  de- 
fendant he  must  then  show  the  existence  of  the  dis- 
trict rules  and  his  compliance  therewith  before  he 
can  introduce  his  location  or  record  made  under  such 
rules. — Sears  v.  Taylor,  5  M.  R.  318. 

Courts  will  not  inquire  into  the  regularity  of  the 
mode  by  which  district  rules  have  been  enacted,  ex- 
cept upon  allegation  of  fraud,  or  other  like  cause. — 
Gore  v.  McBrayer,  1  M.  R.  645. 

Where  the  evidence  renders  it  doubtful  whether 
the  written  laws  of  a  district  are  in  force,  both  the 
written  laws  and  parol  proof  of  the  mining  customs 
may  be  offered  in  evidence. — Golman  v.  Clements,  5 
M.  R,  247. 

District  Records. 

A  district  record  kept  in  a  pocket  diary  is  no 
record. — Fuller  v.  Harris,  29  Fed.  814.  A  district 
recorder  can  not  appoint  a  deputy. — Van  Buren  v. 
McKinley,  66  Pac.  936. 

Once  proved  to  exist  are  presumed  to  continue. — 
Riborado  v.  Quang  Pang  M.  Go.  6  Pac.  125. 
•        The  land  office,   in  patent  applications,   has  the 
power  to  decide  what  rules  are  in   force. — Parley's 
Park  Co.  v.  Kerr,  130  U.  S.  256. 

A  mining  regulation  can  not  restrict  the  number 
of  claims  which  a  party  may  hold  by  purchase. — 
Prosser  v.  Parks,  4  M.  R.  452. 

A  district  rule  can  not  limit  the  size  of  a  claim 
duly  located  before  such  rule  was  adopted. — Table 
Mt.  Co.  v.  Stranahan,  9  M.  R.  465. 

A  right  to  hold  a  claim  may  be  forfeited  by  fail- 
ure to  comply  with  the  district  rules. — St.  John  v. 
Kidd,  4  M.  R.  454-  But  not  unless  the  rule  itself  so 


10  U.  S.  LICENSE. 

expressly  provides. — Bell  v.  Red  Rock  Co.  1  M.  R.  45; 
Emerson  v.  McWhirter,  65  Pac.  1036. 

A  valid  district  rule  may  exist  and  be  proved, 
although  not  found  among  the  other  written  rules  of 
the  district. — Harvey  v.  Ryan,  4  M.  R.  JflO. 

A  custom,  reasonable .  in  itself,  and  generally 
observed,  will  prevail  against  a  written  mining  regu- 
lation which  has  fallen  into  disuse.—- Id. 

The  existence  of  a  district  mining  law  is  a  ques- 
tion of  fact  for  the  jury. — Id. 

Effect  of  Mining  Codes. 

Arizona,  Colorado,  Idaho,  Montana,  Nevada,  New 
Mexico,  North  and  South  Dakota,  Oregon,  Washing- 
ton and  Wyoming,  have  adopted  more  or  less  com- 
plete mining  codes.  In  California,  Utah  and  Alaska, 
much  more  is  left  to  the  control  of  the  district  or- 
ganizations, but  the  inclination  in  all  is  toward  stat- 
utory regulations  and  on  whatever  point  the  statute 
is  made  to  cover,  the  authority  of  the  district  rules 
ceases,  except  as  to  rights  already  vested.  The  ten- 
dency is  thus  to  their  ultimate  extinction.  See  STAT- 
UTORY REQUIREMENTS  and  RECORD. 


CONGRESSIONAL  RECOGNITION  OF  MINERS' 
RIGHTS. 


License  to  Appropriate  the  Public  Domain. 

II.  S.  Sec.  910. — No  possessory  action  between  persons, 
in  any  court  of  the  United  States,  for  the  recovery  of 
any  mining  title,  or  for  damages  to  any  such  title,  shall 
be  affected  by  the  fact  that  the  paramount  title  to  the 
land  in  which  such  mines  lie  is  in  the  United  States  ;  but 
each  case  shall  be  adjudged  by  the  law  of  possession. — Sec. 
9,  A.  C.  Feb.  Vt,  1865. 

License  Under  Congressional  Act  of  1866. 

Sec.  1. — The  mineral  lands  of  the  public  domain, 
both  surveyed  and  unsurveyed,  are  hereby  declared  to  be 
free  and  open  to  exploration  and  occupation  by  all  citizens 


U.  S.  LICENSE.  11 

of  the  United  States,  and  those  who  have  declared  their 
Intention  to  become  citizens,  subject  to  such  regulations  as 
may  be  prescribed  by  law,  and  subject  also  to  the  local  cus- 
toms or  rules  of  miners  in  the  several  mining  districts,  so 
far  as  the  same  may  not  be  in  conflict  with  the  laws  of  the 
United  States. — Sec.  1,  A.  C.  July  26,  1866.  Repealed  May 
10,  1872. 

License  Under  Present  Congressional  Law. 

It.  S.  Sec.  2319. — All  valuable  mineral  deposits  In 
lands  belonging  to  the  United  States,  bath  surveyed  and  un- 
surveyed,  are  hereby  declared  to  be  free  and  open  to  explor- 
ation and  purchase,  and  the  lands  in  which  they  are  found 
to  occupation  and  purchase,  by  citizens  of  the  United  States 
and  those  who  have  declared  their  intention  to  become  such, 
under  regulations  prescribed  by  law,  and  according  to  the 
local  customs  or  rules  of  miners  in  the  several  mining  dis- 
tricts, so  far  as  the  same  are  applicable  and  not  inconsist- 
ent with  the  laws  of  the  United  States. — Sec.  1,  A.  C.  May 
10,  1872. 

Section  910  contains  the  first  Congressional  rec- 
ognition of  the  fact  that  the  mineral  lands  of  the 
United  States  were  being  appropriated  by  its  citizens. 

From  the  time,  however,  of  the  discovery  of  gold 
in  California,  the  government  had  tacitly  recognized 
the  occupation  of  its  mining  lands  as  such,  and  with- 
held them  from  survey  and  pre-emption. 

Judicial  Recognition. 

The  judiciary  of  California  and  all  the  States 
and  Territories  on  the  Pacific  slope  had  recognized 
the  "Miners'  Title"  as  property  entitled  to  protec- 
tion, and  they  were  followed  by  the  Supreme  Court 
of  the  United  States  to  the  same  effect. — Sparrow  v. 
Strong,  2  M.  R.  320;  Forbes  v.  Gracey,  14  M.  R.  183. 

Consecutive  Acts  of  '66,  '70  and  72. 

In  1866  the  first  Act  was  passed  looking  to  the 
absolute  disposition  of  mineral  veins.  In  1870  a  sup- 
plemental act  was  passed  embracing  placers.  In 
1872  these  acts  were  revised  and  the  Act  of  Congress 
of  May  10  of  that  year,  found  in  Chapter  6,  Title  32 
of  the  Revised  Statutes  of  the  United  States,  is,  with 
slight  change,  the  Congressional  law  now  in  force. 


12  POSSESSORY  TITLE. 


LEGAL  STATUS  OF  POSSESSOEY  CLAIMS. 


The  National  Government  the  Source  of  Title. 

By  proper  expressions  in  the  Organic  Act  of  each 
Territory  or  the  Enabling  Act  of  each  State,  the  own- 
ership of  the  United  States  in  the  public  domain  is 
declared  as  fundamental  law.  The  attempt  once 
made  in  California  to  assert  a  State  ownership  in 
mines,  Hicks  v.  Bell,  3  Cal.  219,  has  been  long  ago 
abandoned. — Moore  v.  Smaw,  12  M.  R.  429.  The  title 
to  all  lands  in  the  French  and  Mexican  cessions,  is 
in  the  first  instance,  in  the  United  States  of  America, 
excepting  grants  made  by  the  old  government  prior 
to  the  treaties.  These  cessions  include  all  land  west 
of  the  Mississippi  River  except  the  old  Territory  of 
Oregon. 

The  fee  simple  thus  remaining  in  the  govern- 
ment, all  citizens,  or  persons  who  have  declared  their 
intention  to  become  citizens,  are  allowed  to  enter 
upon  the  unappropriated  public  domain  and  acquire 
title  to  mineral  lands  by  complying  with  certain  regu- 
lations intended  to  preserve  the  peace  and  protect 
the  first  occupant. 

Before  the  passage  of  Acts  of  Congress  to  this 
effect,  the  assertion  of  claims  to  mines  by  discoverers 
had  been  recognized  by  district  rules,  local  statutes 
and  decisions  of  courts.  But  ever  since  1866  the  mat- 
ter has  been  regulated  by  specific  Acts  of  Congress, 
supplemented  by  district  rules  and  local  legislation 
concerning  the  details  of  occupation  and  the  manner 
of  disclosing  and  perfecting  title. 

Whether  a  Vested  Estate. 

It  would  not  seem  under  previous  decisions  (Yo- 
semite  Case,  15  Wall.  77),  that  an  unpatented  mining 
claim  was  a  vested  estate.  And  the  clause  in  the  Act 


POSSESSORY  TITLE.  13 

of  1872  requiring  annual  labor  on  claims  taken  up 
under  .the  Act  of  1866  was  a  statutory  declaration 
that  it  did  not  constitute  a  vested  estate.  But  later 
rulings,  made  since  such  Mining  Titles  have  been  fre- 
quently before  the  National  Supreme  Court  and  the 
number  and  importance  of  such  inchoate  estates  have 
been  recognized,  treat  them  technically  as  well  as  in 
conscience,  as  estates  vested  in  the  occupant.  Such 
may  now  be  accepted  as  the  necessary  conclusion 
from  the  decisions  to  be  cited;  and  the  Yosemite  case 
is  relegated  to  that  class  of  precedents  which  are 
silently  departed  from  without  being  in  terms  over- 
ruled.— Gwillim  v.  Donnellan,  15  M.  R.  482;  Mc- 
Feters  v.  Pier  son,  15  Colo.  204. 

The  Miner  Holds  a  Qualified  Title  dependent 
upon  possession  and  maintained  by  compliance  with 
local  directions.  He  is  not  compelled  to  advance  to 
patent  nor  to  pay  for  the  use  of  the  land,  but  his 
holding  is  of  the  same  legal  class  as  a  homestead 
or  pre-emption  and  is  in  anticipation  of  an  ultimate 
entry  and  patent.  His  title  is  not  absolute  in  a  tech- 
nical sense,  nor  secure  in  a  practical  sense,  until 
he  gets  the  fee  simple  title  by  such  proceedings. 

Abandonment. 

Such  an  estate,  dependent  upon  possession,  is 
conversely  one  which  may  be  lost  by  abandonment. 
— Merritt  v.  Judd,  6  M.  R.  62;  Mallett  v.  Uncle  Sam 
Co.  1  M.  R.  18. 

Is  a  Freehold. 

That  is  to  say,  an  estate  which  passes  to  "the 
heir. — Harris  v.  Equator  Co.  12  M.  R.  178;  Merritt 
v.  Judd,  6  M.  R.  62;  McFeters  v.  Pier  son,  15  Colo. 
201;  Keeler  v.  Trueman,  Id.  143. 

Is  Real  Estate. 

The  miner's  claim  or  title  is  real  estate  as  dis- 
tinguished from  chattel  or  personal  property  and  Is 
conveyed,  sued  for,  descends,  is  devisable  and  is 
treated  in  other  respects  as  the  real  property  of  the 


14  POSSESSORY  TITLE. 

occupant,  subject  only  to  the  paramount  title  of  the 
United  States. — Roseville  Co.  v.  Iowa  Gulch  Co.  16 
M.  R.  93;  Butte  Co.  v.  Frank,  65  Pac.  1.  But  in 
Oregon  and  Washington  they  have  been  held  to  be 
personal  property.  Herron  v.  Eagle  Co.  61  Pac. 
417 ;  Phoenix  Co.  v.  Scott,  54  Pac.  777. 

The  Distinctions  Between  Mining  Claims  and 
Other  Classes  of  Realty  are  substantially  those 

arising  out  of  the  following  incidents: 

1.  The  title  being  first  acquired  by  possession,  it 
may  be  lost  by  acts  amounting  to  a  discontinuance 
of  possession;  that  is  by  abandonment. 

2.  The  title   is   conditional   upon   a   compliance 
with  district  rules,  if  any  exist. 

3.  The  formula  of  notice  and  recording,  and  the 
method  of  initiating  title  are  subject  to  regulation 
by  the  State  or  Territory,  in  details  not  covered  by 
the  Acts  of  Congress. 

4.  Annual  labor  upon  each  claim  is  required  by 
Act  of  Congress    as    a    condition    upon    the    nonper- 
formance  of  which  the  same  consequences  result  as 
in  the  case  of  a  technical  abandonment;   that  is,  the 
claim  becomes  open  to  the  entry  of  the  next  occupant. 

5.  Special   modes   of   assessment   and   collection 
of  taxes  are  or  have  been  attempted;  but  distinctions 
of  this  sort  have  generally  been  found   impractical. 

6.  There  are  statutes  to  prevent  forcible  dispos- 
session  of  claimants,   to  allow  of  underground  sur- 
veys and  inspection  and  to  regulate  drainage. 

7.  The  mode  of  perfecting  patent  in  the  U.  S. 
Land  Office  is  wholly  different  from  that  regulating 
pre-emption  or  homestead  entries  upon  agricultural 
lands. 


SCHOOL  CLAIMS'— SOLDIERS'  CLAIMS.  15 


SCHOOL  CLAIMS. 


Fully  one-half  of  all  the  sections  of  the  old  Colo- 
rado Statutes  on  the  subject  of  mines,  was  taken  up 
by  a  persistent  attempt  to  force  a  "School  Claim"  on 
each  location.  The  whole  effort  was  in  violation  of 
the  Organic  Act,  and  has  been  held  absolutely  null 
and  void  as  well  by  the  courts  as  by  the  land  office, 
and  repudiated  by  the  miners  as  an  attempt  to  put 
the  whole  cost  of  schools  on  a  class  of  men  who,  as 
a  rule,  were  not  persons  with  families. 

By  Act  of  1862,  claim  No.  3,  east  or  west,  was  to 
be  set  apart  for  schools;  by  Act  of  1866,  one  side 
claim  on  each  end  of  the  discovery  claim  of  1,400  feet 
was  to  be  recorded — 100  feet  for  schools  and  100  feet 
for  disabled  miners. 


SOLDIERS'  CLAIMS. 


By  Territorial  Acts  passed  in  instances  during 
the  civil  war,  claims  belonging  to  soldiers  were  pro- 
tected from  forfeiture  during  enlistment  and  for  a 
reasonable  time  thereafter;  they  were  also  allowed 
to  locate  and  record  claims  by  proxy;  and  their  titles 
were  protected  from  sale  on  execution  during  their 
absence. 

During  the  Spanish  war  Congress  passed  the  fol- 
lowing Act  relieving  volunteers  from  performing 
assessment  work  during  their  term  of  service.  It  did 
not  relieve  their  co-owners  from  doing  their  proper 
proportion  of  work  on  the  same  claim. 


16  SOLDIERS'  CLAIMS. 

An  Act  to  relieve  owners  of  mining  claims  who  enlist 
in  the  military  or  naval  service  of  the  United  States  for 
duty  in  the  war  with  Spain  from  performing  assessment 
work  during  such  term  of  service  : 

No  Annual  Labor  Required. 

That  the  provisions  of  section  twenty-three  hundred 
and  twenty-four  of  the  Revised  Statutes  of  the  United  States, 
which  require  that  on  each  claim  located  after  the  tenth 
day  of  May,  eighteen  hundred  and  seventy-two,  and  until  pat- 
ent has  been  issued  therefor,  not  less  than  one  hundred  dol- 
lars' worth  of  labor  shall  be  performed  or  improvements 
made  during  each  year,  shall  not  apply  to  claims  or  parts 
of-  claims  owned  by  persons  who  may  enlist  in  the  volun- 
teer army  or  navy  of  the  United  States  for  service  in  a  war 
between  this  country  and  Spain,  so  that  no  mining  claim 
or  any  part  thereof  owned  by  such  person  which  has  been 
regularly  located  and  recorded  shall  be  subject  to  forfeiture 
for  nonperformance  of  the  annual  assessments  until  six 
months  after  such  owner  is  mustered  out  of  the  service, 
or,  if  he  should  not  survive  the  war,  then  six  months  af- 
ter his  death  in  the  service. 

Certificate  to  Be  Filed. 

Sec.  2.  That  those  desiring  to  take  advantage  of  this 
Act  shall  file,  or  cause  to  be  filed,  a  notice  in  the  clerk's 
office  where  the  location  certificate  of  said  mine  is  recorded 
before  the  expiration  of  the  assessment  year,  giving  notice 
of  his  enlistment  and  of  his  desire  to  hold  said  claim  under 
this  ,Act. 

Co-Owners. 

Sec.  3.  That  if  any  such  enlisted  soldier  or  sailor  has  a 
coowner  or  coowners  in  any  mining  claim,  and  who  are  not 
in  the  Army  or  Navy,  and  such  coowner  or  coowners  fail  to 
do  such  a  proportion  of  one  hundred  dollars'  worth  of  work 
per  annum  as  the  interest  of  such  nonenlisted  person  or 
persons  bears  to  the  whole  claim,  then  such  interest  shall  be 
open  to  relocation  by  any  other  qualified  person  or  persons 
by  their  doing  the  necessary  work  thereon  and  filing  an 
affidavit  of  labor  showing  the  forfeiture  and  that  the  re- 
locators  had  done  the  annual  work  required  of  such  non- 
enlisted  persons  and  succeeded  them  in  right  under  this  Act, 
which  work  may  be  done  at  any  time  after  the  expiration 
of  the  assessment  year  and  before  the  former  owners  resume 
work  thereon.  The  work  and  affidavit  aforesaid  shall  op- 
erate as  a  transfer  of  said  forfeited  interest  from  the  for- 
mer owners  to  said  relocators. — Approved  July  2}  1898,  SO 
St.  L.  651. 


LENGTH  OF  OLD  LODE  CLAIMS'.  17 


LENGTH  OF  LODE  CLAIM  LOCATED  BEFOEE 

MAY  10,  1872. 


3000  Foot  Act  of  Congress  of  1866. 

Sec.  4  *  *  *  No  location  hereafter  made  shall 
exceed  two  hundred  feet  in  length  along  the  vein  for  each 
locator,  with  an  additional  claim  for  discovery  to  the  dis- 
coverer of  the  lode,  with  the  right  to  follow  such  vein  to 
any  depth,  with  all  its  dips,  variations,  and  angles,  together 
with  a  reasonable  quantity  of  surface  for  the  convenient 
working  of  the  same  as  fixed  by  local  rules.  And  provided 
further,  That  no  person  may  make  more  than  one  location 
on  the  same  lode,  and  not  more  than  three  thousand  feet 
shall  be  taken  in  any  one  claim  by  anj  association  of  per- 
sons.— A.  C.  July  26;  1866.  Repealed  Hay  10,  1872. 

Before  the  Act  of  Congress  of  1866  the  length 
of  lode  claims  was  regulated  either  by  district  rules 
or  by  State  or  Territorial  legislation.  It  was  by 
no  means  uniform.  Short  lengths  of  100  or  200  feet, 
sometimes  as  low  as  fifty  feet  or  less,  were  the  limi- 
tations under  the  older  district  rules.  In  later  years 
the  tendency  was  to  allow  longer  claims.  In  Colo- 
rado the  statute  fixed  the  length  of  a  claim  in  1861 
at  100  feet.  In  1866  at  1,400  feet.  The  Act  of  Con- 
gress of  1866  allowed  400  feet  to  the  discoverer  and 
a  claim  of  200  feet  to  each  associate  locator,  not  ex- 
ceeding  3,000  feet  on  the  lode  under  one  location. 

Associates  and  Side  Claims. 

It  is  impossible  to  understand  the  limitations  on 
the  size  of  claims  without  considering  a  certain  cus- 
tom which  originated  in  the  earliest  mining  camps  of 
California  and  became  a  general  practice  over  the 
western  slope.  With  slight  local  modifications  this 
custom  was  for  the  discoverer  to  record  a  notice  that 
he  claimed  50,  100  or  200  feet,  as  the  case  might  be, 
on  a  certain  lode.  On  the  same  paper,  or  by  a  sepa- 
rate paper  signed  later,  other  parties,  real  or  nominal 


18  LENGTH  OF  OLD  LODE  CLAIMS. 

associates  of  the  discoverer,  would  give  notice  of  claim 
to  No.  1  East,  No.  1  West,  etc.,  on  the  same  lode. 
Not  only  would  the  associates  of  the  discoverer  make 
such  records,  but  often  third  parties,  without  even 
going  on  the  ground,  would  file  on  these  side  claims — 
in  instances  to  the  extent  of  several  thousand  feet 
on  each  side  from  the  discovery  claim. 

Joint  Records. 

In  other  districts  the  discoverer  and  his  asso- 
ciates would  file  on  the  discovery  claim,  No.  1  East, 
No.  1  West,  No.  2  West,  etc.,  indefinitely  by  a  joint 
location  certificate,  not  attempting  to  segregate  the 
feet  claimed  by  one  from  the  feet  claimed  by  the 
other. 

Record  Without  Location  Work. 

These  side  claims,  whether  taken  separately  or 
as  one  joint  location,  were  supposed  to  be  at  least 
staked  off  on  the  ground,  but  no  discovery  hole  was 
required,  and,  in  fact,  in  most  cases,  only  the  paper 
record  was  made  and  the  claims  seldom  pursued  fur- 
ther, unless  developments  on  the  discovery  claim 
seemed  to  indicate  that  the  side  claims  might  be  of 
value.  Such  was  not  the  original  intention  of  the 
miners,  but  the  custom  degenerated  to  this,  and  the 
records  of  hundreds  of  such  claims  remain,  whose 
owners  never  did  any  work  upon,  nor  ever  knew  the 
exact  situation  of  their  claims. 
Nominal  Associates  Conveying  to  Discoverer. 

This  privilege  to  locate  side  claims  was  soon 
taken  advantage  of  by  the  discoverer,  who  procured 
nominal  parties  to  record,  and  immediately  after 
recording  to  convey  their  claims  to  him,  and  as  soon 
as  the  Act  of  Congress,  1866,  was  passed,  such  be- 
came the  universal  practice,  the  custom  as  it  already 
existed  being  altered  only  in  this:  That  the  claims 
were  no  longer  numbered,  but  were  taken  together 
as  a  joint  location  by  a  supposed  association  of  four- 
teen persons,  taking  fifteen  claims  of  200  feet  each, 


LENGTH  OF  OLD  LODE  CLAIMS.  19 

or  3,000  feet  in  all — the  discoverer  being  allowed  one 
additional  claim.  Further,  after  the  passage  of  such 
Act,  the  staking  of  the  lode  into  its  several  claims 
was  abandoned  altogether.  Before  the  Act  each  lo- 
cator usually  recorded  one  specific  claim,  in  which  the 
other  locators  had  no  interest,  nor  he  in  theirs,  but 
after  the  Act,  the  record  almost  always  showed  a 
joint  location  of  undivided  claims. 

Validity  of  Such  Nominal  Records. 

It  is  more  than  doubtful  whether  at  any  time, 
as  against  an  adverse  ~bona  fide  claim,  such  nominal 
side  claims  were  by  the  record  alone,  of  any  validity, 
unless  actually  possessed  and  defined  upon  the  ground 
in  some  manner;  Cons.  Rep.  Co.  v.  Lebanon  Co.  /-"> 
M.  R.  Jf90 ;  Becker  v.  Pugli,  Id.  30 Ji;  Hess  v.  Winder, 
12  M.  K.  211';  but  the  practice  of  the  Land  Office  is 
to  patent  such  claims  without  inquiry,  if  sufficient  de- 
velopment for  patent  has  been  done  on  any  one  of 
them,  or  on  the  discovery. 

Length  of  Lode  Claim  at  Various  Dates  in  Colorado. 

1.  Prior  to  Nov.   7,  1861,  the  length  of  a  lode 
claim  was  fixed  by  district  rules. 

2.  From  Nov.    7,   1861,  to   March   11,   1864,   the 
length   of   a  claim   was   100   feet,   but  an   indefinite 
number  of   claims   could  be  based   on   a  single  dis- 
covery. 

3.  From   March   11,   1864,   to  Feb.    9,    1866,    100 
feet  was  the  length  of  a  claim,  and  sixteen  claims 
of  that  length  could  be  based  on  a  single  discovery. 

4.  From  Feb.  9,  1866,  to  July  26,  1866,  1,400  feet 
was  the  length  of  a  claim  and  the  limit  of  a  location. 

5.  From  July  26,  1866,  to  Feb.  11,  1870,  200  feet 
was  the  length  of  a  claim  and  1,400  feet  could  be 
taken  under  one  location. 

6.  From  Feb.  11,  1870,  to  May  10,  1872,  200  feet 
was  the  length  of  a  claim  and  3,000  feet  could  be 
taken  under  one  location. 

7.  Since  May  10,  1872,  1,500  feet  is  the  length  of 
a  claim. 


20  PRESENT  LENGTH  OF  LODE  CLAIMS. 


LENGTH  OF  LODE  CLAIM  SINCE  MAY  10,  1872. 


Not  to  Exceed  1,500  Feet. 

R.  S.  Sec.  2320. — Mining-claims  upon  veins  or  lodes 
of  'quartz  or  other  rock  in  place  bearing  gold,  silver,  cinna- 
bar, lead,  tin,  copper,  or  other  valuable  deposits,  heretofore 
located,  shall  be  governed  as  to  length  along  the  vein,  or 
lode  by  the  customs,  regulations,  and  laws  in  force  at  the 
date  of  their  location.  A  mining-claim  located  after  the 
tenth  day  of  May,  eighteen  hundred  and  seventy-two, 
whether  located  by  one  or  more  persons,  may  equal,  but 
shall  not  exceed,  one  thousand  five  hundred  feet  in  length 
along  the  vein  or  lode ;  but  no  location  of  a  mining-claim 
shall  be  made  until  the  discovery  of  the  vein  or  lode  within 
the  limits  of  the  claim  located.  *  *  *  — Sec.  2,  A.  C 
May  10}  1872. 

Colorado  State  Law  to  Conform  to  Above. 

.  M.  A.  S.  Sec.  3148. — The  length  of  any  lode  claim 
hereafter  located  may  be  equal  but  not  exceed  fifteen  hun- 
dred feet  along  the  vein. — Pel).  13,  187J,. 

Since  May  10,  1872,  1,500  Feet  has  been  the  well- 
known  limit  of  a  lode.  This  number  of  feet  consti- 
tutes one  undivided  claim,  or  one  lode  as  the  word 
is  commonly  used — that  is,  so  much  of  a  vein  as 
is  covered  by  one  location  based  upon  a  single  dis- 
covery— and  in  practice  so  much  of  one  vein  as  is 
known  by  a  single  name  and  covered  by  a  single 
record.  The  length  of  1,500  feet  'is  the  uniform 
length  wherever  the  mining  acts  are  in  force.  It 
is  doubtful  whether  a  State  Legislature  could 
shorten  this  length,  it  being  a  Congressional  limi- 
tation. It  is  the  length  almost  invariably  expressed 
in  the  location  certificate  and  is  rarely  shortened 
except  where  only  a  fraction  of  clear  ground  re- 
mains to  be  taken  up. 

Length — How  Distributed. 

This  length,  by  common  usage,  is  taken  750  feet 
on  each  side  of  center  of  discovery;  but  it  may  be 


WIDTH  OF  OI.D  LODE  CLAIMS.  21 

taken  all  on  one  side  except  enough  to  include  the 
discovery  shaft  itself,  or  it  may  be  distributed  in  any 
desired  proportion  from  the  center  of  the  discovery 
shaft. 

Location  of  Excessive  Length. 

The  import  of  the  decisions  on  this  point  seems 
to  be  that  an  inadvertent  over-stepping  of  the  legal 
length  will  not  avoid  the  claim;  Richmond  Co.  v. 
Rose,  114  U.  8.  516;  Burke  v.  McDonald,  33  Pac.  4<J; 
Hanson  v.  Fletcher,  37  Pac.  480;  but  that  the  claim 
as  to  the  excess  is  void;  Hauswirth  v.  Butcher,  4 
Mont.  299;  Goitres  v.  Illinois  Go.  67  Pac.  666;  and 
that  a  gross  excess  (1,763  instead  of  1,500  feet) 
made  without  excuse  will  defeat  the  whole  location. — 
Leggatt  v.  Stewart,  15  M.  R.  358. 

An  excess  staking  in  length  or  width  does  not 
invalidate,  except  as  to  the  excess,  when  made  with- 
out fraud  (in  this  case  by  stepping  the  lines)  and 
the  mistake  has  been  corrected  before  the  rights  of 
third  parties  attached. — Stem-Winder  Co.  v.  Emma 
Co.  21  Pac.  1040. 

But  where  the  excess  was  such  that  the  end  stakes 
could  not  be  found  on  search  within  several  hundred 
feet  the  location  is  not  valid. — Ledoux  v.  Forester,  94 
Fed.  600. 


WIDTH  OF  LODE  CLAIM  LOCATED  BEFORE 
MAY  10,  1872. 


Indefinite  Under  A.  C.  1866. 

Sec.  4. — No  location  hereafter  made  shall  exceed  two 
hundred  feet  *  *  *  * .  *  *  together  with  a  reasonable 
quantity  of  surface  for  the  convenient  working  of  the  same, 
as  fixed  by  local  rules. — A.  C.  July  26,  1866.  Repealed  May 

10,  1872. 

Colorado  50-Foot  Act  of  1866. 

Sec.  4. — On  all  mineral  lodes  or  veins  of  gold-bear- 
ing ores,  or  of  silver  or  other  valuable  minerals  in  this  Ter- 


PRESENT  WIDTH  OF  LODE  CLAIMS. 

rltory.  the  owner  or  owners  of  all  such  deposits  shall,  by 
virtue  of  priority  of  discovery,  be  deemed  and  held  to  be 
the  owner  or  owners  of  all  spurs,  off -shoots,  dips,  angles, 
feeders,  cross  or  parallel  veins  of  any  character  or  name 
whatsoever,  lying  and  being  within  the  limits  of  twenty-five 
feet  in  either  direction  from  the  center  of  said  first  dis- 
covered lode  or  vein. — Pel).  9,  18G6. 

The  district  rules  usually  allowed  a  surface 
width  of  fifty  feet;  sometimes  more,  often  less.  The 
Act  of  February  9,  1866,  made  twenty-five  feet  on 
each  side  of  the  center  of  the  vein  the  width  of  the 
claim  by  implication  only,  and  yet  was  generally 
construed  as  restricting  width  of  claims  throughout 
Colorado;  and  this  was  the  only  mention  of  the  sub- 
ject in  the  Colorado  Statutes  prior  to  1874. 

The  A.  C.  1866,  allowed  a  "reasonable  quantity" 
of  surface,  but  the  Territorial  Statute  of  the  same 
year  was  taken  as  fixing  the  amount  as  above  stated, 
at  fifty  feet. 

In  the  other  States  and  Territories  the  width  was 
almost  invariably,  as  it  still  is  in  some  of  them,  fixed 
by  district  regulation  alone,  without  reference  to  the 
subject  by  the  legislature. — Parley's  Park  Co.  v.  Kerr, 
ISO  U.  8.  256. 

Prior  to  the  Act  of  Congress  of  1872,  the  width  of 
claims  had  been  considered  merely  as  a  question  of 
sufficient  surface  for  convenient  working. 


WIDTH  OF  LODE  CLAIM  SINCE  MAY  10,  1872. 


Limits  Allowed  by  Present  U.  S.  Law. 

R.  S.  Sec  2320  *  *  *  No  claim  shall  extend  mx>re 
than  three  hundred  feet  on  each  side  of  the  middle  of  the 
vein  at  the  surface,  nor  shall  any  claim  be  limited  by  any 
mining  regulation  to  less  than  twenty-five  feet  on  each  side 
of  the  middle  of  the  vein  at  the  surface,  except  where  ad- 
verse rights  existing  on  the  tenth  day  of  May.  eighteen 
hundred  and  seventy-two,  render  such  limitation  necessary. 
The  end-lines  of  each  claim  shall  be  parallel  to  each  other. — 
8ec.  2.  A.  C.  May  10.  1872. 


PRESENT  WIDTH  OP  LODE  CLAIMS.  23 

Present  Width  Fixed  by  Colorado  Statute. 

M.  A.  S.  Sec.  3149. — The  width  of  lode  claims  here- 
after located  in  Gilpin,  Clear  Creek,  Boulder  and  Summit 
counties,  shall  be  seventy-five  feet  on  each  side  of  the 
center  of  the  vein  or  crevice ;  and  in  all  other  counties 
the  width  of  the  same  shall  be  one  hundred  and  fifty  feet 
on  each  side  of  the  center  of  the  vein  or  crevice  :  Provided, 
That  hereafter  any  county  may,  at  any  general  election, 
determine  upon  a  greater  width  not  exceeding  three  hundred 
feet  on  each  side  of  tl\&  center  of  the  vein  or  lode,  by  a 
majority  of  the  legal  votes  cast  at  said  election,  and  any 
county  by  such  vote  at  such  election  may  determine  upon 
a  less  width  than  above  specified. — Feb.  13,  187.'f.  In  force 
June  15,  187.',. 

Between  May,  1872,  and  June,  1874. 

Between  May  10,  1872,  when  the  Congressional 
section  in  regard  to  width  was  passed,  and  June  15, 
1874,  when  the  Colorado  Act  took  effect,  the  width  of 
all  lode  claims  remained  fixed  at  fifty  feet  under  the 
Territorial  Act  of  1866,  printed  on  page  21. 

Colorado,  300  Feet  Except  in  Certain  Counties. 

The  A.  C.  of  1872,  having  allowed  to  the  locator 
all  the  veins  within  the  side  lines  of  his  claim,  gave 
at  once  to  the  question  of  width  an  importance  before 
unknown.  The  Legislature  having  in  their  power  to 
choose  between  the  extreme  width  of  600  feet  and  the 
minimum  width  of  fifty  feet,  a  great  difference  of 
opinion  resulted  in  that  State,  citizens  of  the  older 
mining  counties  generally  contending  for  a  narrow 
width,  while  in  the  new  districts  a  much  greater 
width  was  desired;  after  great  debate  it  was  fixed  at 
150  feet  for  Gilpin,  Clear  Creek,  Boulder  and  Summit 
counties,  and  at  300  feet  in  all  other  counties. 

No  instance  is  known  to  the  author  of  any  at- 
tempt in  any  county,  to  change  the  width  by  an  elec- 
tion held  under  the  proviso  of  M.  A.  S.  Sec.  3149;  and 
the  constitutionality  of  any  such  proceeding,  if  at- 
tempted, would  admit  of  very  great  doubt. 

All  the  Other  States  and  Territories  allow  the  full 
limit  of  600  feet  width,  except  where  the  district 
rules  fix  a  narrower  limit,  which  they  rarely  now 


24  PRESENT  WIDTH  OF  LODE  CLAIMS. 

purport  to  do;  and  except  also  North  and  South 
Dakota,  which  fix  the  width  at  300  feet,  allowing 
counties  to  increase  or  decrease  it  within  the  Con- 
gressional limit. 

Center  of  Vein,  Center  of  Claim. 

It  will  be  observed  that  the  center  of  the  lode  is 
made  the  center  of  this  width.  If,  therefore,  a  party 
attempt  to  locate  more  than  half  the  extreme  width 
on  either  side  of  his  vein,  the  location  of  such  excess 
is  without  the  authority  of  law,  although  the  entire 
width  be  within  the  statutory  limit. — Taylor  v.  Par- 
enteau,  23  Colo.  368. 

By  Statute,  in  Wyoming,  the  discovery  shaft 
must  be  equi-distant  from  the  side  lines  of  the 
claim. 

Location  of  Excessive  Width. 

The  Surveyor-General  will  not  issue  an  order  for 
survey  for  patent  upon  a  location  certificate  which 
claims,  in  terms,  on  its  face,  more  than  the  total 
width  allowed  or  with  an  excess  of  more  than  one- 
half  of  the  legal  width  on  either  side  of  the  center 
of  the  discovery  vein,  and  'it  is  doubtful  whether  any 
court  would  receive  such  certificate  in  evidence.  Such 
mistakes  are  the  work  of  surveyors  who  undertake 
to  put  their  field  notes  into  the  form  of  a  location 
certificate  in  total  ignorance  of  what  constitutes  a 
valid  location  certificate.  This  document  should  be 
drawn  by  a  competent  attorney. 

But  there  is  nothing  to  prevent  a  location  of  one- 
half  the  statutory  width  on  one  side  the  center  of  the 
vein  and  less  than  one-half  on  the  other  side  of  such 
center  line. 

Excess  by  Vein  Approaching  Side  Line. 

It  is  true  that  it  may  not  be  known  when  the 
stakes  are  set  what  the  course  of  the  lode  may  be, 
and  honest  errors  in  this  respect  may  readily  be  com- 
mitted; but  the  vein  being  the  basis  of  location,  and 
it  having  been  decided  that  when  a  vein  leaves  the 
side  lines  of  its  location,  the  claim  both  as  to  veins 


DISCOVERY  AND  LOCATION— OLD  LODE'S. 


25 


and  surface  beyond  that  point  is  void,  it  necessarily 
follows,  where  either  side  line  is  found  at  any  point 
to  be  more  than  the  legal  distance  from  the  center  of 
the  vein,  that  the  location  of  such  excess  in  width 
has  not  been  based  upon  a  vein  lying  within  the  stat- 
utory limits,  and  comes  within  the  same  reasoning 
which  renders  all  that  part  of  the  location  void  in 
which  no  vein  is  found. — Patterson  v.  Hitchcock,  5 
M.  R.  542.  But  no  such  fact  would  vitiate  any  part 
of  the  claim  after  patent  issued. — Peabody  Co.  v. 
Gold  Hill  Co.  97  Fed.  657. 


The  above  diagram  illustrates  the  preceding  para- 
graph. The  shaded  ground  shows  an  excess  of  300 
feet  from  the  center  of  the  vein.  A  valid  hostile  dis- 
covery could  be  made  upon  such  ground  or  a  loca- 
tion made  taking  it  in.  The  plat  shows  a  claim  of  600 
feet  width.  Where  the  full  width  is  300  feet,  the 
excess  would  begin,  of  course,  at  150  feet  "from  the 
center  of  the  vein." 


DISCOVERY  AND   LOCATION   OF  LODES 
FORE  THE  ACTS  NOW  IN  FORCE. 


BE- 


Shaft  and  Stake  Tinder  Colorado  Act  of  1866. 

Sec.  2. — All  lodes  or  veins  of  gold,  silver,  or  other 
valuable  minerals,  which  may  hereafter  be  discovered,  shall 
be  marked  at  the  point  of  discovery  by  a  substantial  stake, 
I»ost  or  stone  monument,  having  inscribed  thereon  the  name 


26         DISCOVERY  AND  LOCATION— OLD  LODES. 

of  the  discoverer  or  discoverers,  and  the  name  of  the  lode 
or  vein,  with  date  of  discovery  ;  and  the  discoverer  or  dis- 
coverers shall,  before  recording,  excavate  thereon  a  shaft 
at  least  ten  feet  deep,  or  deeper,  if  necessary,  to  find  a  well- 
defined  crevice,  or  forfeit  all  right  and  title  he  or  they  may 
have  acquired  by  virtue  of  such  discovery. — Feb.  9,  1S6G. 

Mode  of  Location  Not  Strict. 

Prior  to  1866  there  was  no  United  States  law  reg- 
ulating lode  locations.  Nor  did  that  law  state  any 
definite  formula  further  than  to  limit  the  extreme 
width  and  length.  Nor  were  the  requirements  of  the 
State  or  Territorial  Legislatures  usually  specific. 
Either  by  statute  or  by  district  rule  a  discovery  was 
always  required  and  a  notice  at  the  point  of  discovery, 
and  in  many  districts  such  a  staking  as  would  indi- 
cate the  extreme  points  to  which  the  claim  extended. 
In  1866  by  statute  in  Colorado  a  location  stake  and  a 
ten  foot  discovery  shaft  were  required.  In  other 
States  and  Territories  even  these  initial  and  essen- 
tial points  were  left  entirely  to  district  regulations. 

In  all  cases  the  actual  disclosure  of  the  vein,  and 
not  merely  the  float  or  indication  of  the  vein,  was  re- 
quired, at  least  with  regard  to  the  discovery  claim; 
and  the  stake  was  required  to  give  the  name  of  the 
lode  and  its  locator,  with  usually  the  date  of  dis- 
covery and  the  number  of  feet  in  each  direction. 
Sometimes  each  separate  claim  was  measured  and 
staked  off. 

That  some  act  of  location  was  required,  has  never 
been  disputed.  But  in  the  absence  of  district  rules, 
what  would  amount  to  a  sufficient  location  can  only 
be  defined  as  such  acts  of  appropriation  as  would 
amount  to  a  declaration  that  the  locator  had  appro- 
priated the  ground,  and  be  sufficient  notice  to  other 
prospectors  that  he  had  so  appropriated  it. — Hess  v. 
Winder,  12  M.  R.  217;  English  v.  Johnson,  Id.  203; 
Attwood  v.  Fricot,  2  M.  R.  305;  Gleeson  v.  Martin 
White  Co.  9  M.  R.  429;  Gonu  v.  Russell,  12  M.  R.  630. 

In  the  case  of  Cons.  Rep.  Co.  v.  Lebanon  Co.  lo 
M.  R.  .'fiO,  it  was  ruled  that  the  posting  of  the  notice 


DISCOVERY  AND  LOCATION.  27 

and  the  recording  of  certificate  not  followed  by  de- 
velopment or  representation,  would  not  hold  the 
claim  against  a  subsequent  location.  See  also  Becker 
v.  Pugh,  15  M.  R.  304. 


DISCOVERY   AND   LOCATION   UNDER   LAWS 
NOW  IN  FORCE. 


Discovery  Required. 

R.  S.  Sec.  2320.  *  *  *  No  location  of  a  mining- 
claim  shall  be  made  until  the  discovery  of  the  vein  or  lode 
within  the  limits  of  the  claim  located.  *  *  — Sec.  2,  A. 
C.  May  10,  1872. 

Staking  and  Record. 

R.  S.  Sec.  2324. — The  miners  of  each  mining-district 
may  make  regulations  not  in  conflict  with  the  laws  of  the 
United  States,  or  with  the  laws  of  the  State  or  Territory 
in  which  the  district  is  situated^  governing  the  location, 
manner  of  recording,  amount  of  work  necessary  to  hold 
possession  of  a  mining-claim,  subject  to  the  following  re- 
quirements :  The  location  must  be  distinctly  marked  on  the 
ground  so  that  its  boundaries  can  be  readily  traced.  *  *  * 
— Sec.  5,  A.  C.  May  10,  1872. 

Discovery  Shaft,  Notice  and  Stakes  in  Colorado. 

M.  A.  S.  Sec.  3152. — Before  filing  such  location  certifi- 
cate the  discoverer  shall  locate  his  claim  by  : 

First — Sinking  a  discovery  shaft  upon  the  lode  to  the 
depth  of  at  least  ten  feet  from  the  lowest  part  of  the  rim 
of  such  shaft  at  the  surface,  or  deeper,  if  necessary  to  show 
a  well  defined  crevice. 

Second — By  posting  at  the  point  of  discovery  on  the 
surface  a  plain  sign  or  notice,  containing  the  name  of  the 
lode,  the  name  of  the  locator,  and  the  date  of  discovery. 

Third — By  marking  the  surface  boundaries  of  the  claim. 
— Feb.  13,  187Jt. 

Corner  Posts,  Center  Posts. 

M.  A.  S.  Sec.  3153. — Such  surface  boundaries  shall  be 
marked  by  six  substantial  posts  hewed  or  marked  on  the 
side  or  sides  which  are  in  toward  the  claim,  and  sunk  in 
the  ground,  to-wit :  one  at  each  corner  and  one  at  the  cen- 
ter of  each  side  line.  Where  it  is  practically  impossible 
on  account  of  bed  rock  to  sink  such  posts,  they  may  be 


28  DISCOVERY  AND  LOCATION. 

placed  in  a  pile  of  stones,  and  where  in  marking  the  sur- 
face boundaries  of  a  claim  any  one  or  more  of  such  posts 
shall  fall  by  right  upon  precipitous  ground,  where  the  proper 
placing  of  it  is  impracticable  or  dangerous  to  life  or  limb, 
it  shall  be  legal  and  valid  to  place  any  such  post  at  the 
nearest  practicable  point,  suitably  marked  to  designate  the 
proper  place. — Feb.  2,  1876. 

Open  Cuts  and  Tunnel  Discoveries. 

M.  A.  S.  Sec.  3154. — Any  open  cut,  cross-cut  or  tunnel 
which  shall  cut  a  lode  at  the  depth  of  ten  feet  below  the 
surface,  shall  hold  such  lode,  the  same  as  if  a  discovery 
shaft  were  sunk  thereon,  or  an  adit  of  at  least  ten  feet  in 
along  the  lode  from  the  point  where  the  lode  may  be  in 
any  manner  discovered,  shall  be  equivalent  to  a  discovery 
shaft. — Feb.  13,  187$. 

Time  to  Sink  Discovery. 

M.  A.  S.  Sec.  8155. — The  discoverer  shall  have  sixty 
days  from  the  time  of  uncovering  or  disclosing  a  lode  to 
sink  a  discovery  shaft  thereon. — 7r7. 

The  Doctrine  of  Appropriation  would  have  no  ap- 
plication to  mining  and  water  claims  on  the  Pacific 
Slope  if  the  lands,  before  the  discovery  of  minerals, 
had  passed  into  the  hands  of  private  owners;  nor 
to  the  government  itself,  if  the  government  had 
chosen  either  to  treat  the  miners  as  trespassers  or 
to  arbitrarily  dispose  of  the  lands  at  public  sale. 
Instead  of  adopting  any  such  policy,  the  United 
States  for  many  years  tacitly,  and  since  1866  by  pos- 
itive enactment,  opened  the  lands  to  the  explorer  and 
occupant;  in  other  words,  the  mineral  lands  were 
offered  to  the  first  appropriator. 

The  Acts  of  Appropriation,  as  to  mineral  lands, 
are  equivalent  to  such  acts  as  would  amount  to 
occupation  in  other  cases;  there  must  be  an  in- 
tent to  possess  the  claim,  such  acts  of  appropria- 
tion as  are  sufficient  to  carry  out  this  intention, 
and  finally  such  acts  must  have  such  publicity  by 
record  as  to  operate  as  notice  to  all  that  the  lands 
have  been  actually  appropriated. 

The  appropriation  of  a  mine,  the  appropriation  of 
water  for  mining  or  irrigating  purposes,  and  the  occu- 
pation of  homestead  land  are  therefore  in  substance 


DISCOVERY  AND  LOCATION.  29 

the  same,  and  differ  only  so  far  as  the  various  subject 
matters  differ,  the  criterion  in  each  case  being  the 
intent  of  the  occupant  to  segregate  a  certain  portion 
of  the  public  domain  to  his  several  use,  followed  by 
acts  manifesting  such  intention  with  such  publicity  as 
is  due  to  the  rights  of  third  parties. — Sparrow  v. 
Strong,  2  M.  R.  320;  Gore  v.  McBrayer,  1  M.  R.  6J,5. 

The  Eight  of  Appropriation  is  now  regulated  by 

statute  to  a  greater  or  less  extent  in  the  various 
States  and  Territories,  so  that  the  appropriator 
must  not  only  occupy  the  ground,  but  must  segre- 
gate his  claim  and  otherwise  comply  with  the  law, 
which  attempts  to  reduce  to  detail  the  above  gen- 
eral principles. 

These  statutes  fix  a  time  for  the  process  of  loca- 
tion and  record  and  require  certain  acts  to  be  done  to 
constitute  a  valid  location.  In  all  the  Western  min- 
ing States  and  Territories,  except  California,  Utah 
and  Alaska,  the  regulations  are  quite  specific.  They 
have  copied  the  earlier  Colorado  Statute  more  or  less 
closely.  In  the  excepted  States  much  more  is  left  to 
district  custom.  It  is  intended  that  a  location  made 
as  in  this  chapter  advised  would  be  valid  in  any  State 
or  Territory,  except  where  some  specific  statute  calls 
for  additional  requirements:  The  details  of  location 
in  each  State  and  Territory  are  tabulated  on  page  .5.9. 

The  formal  acts  of  appropriation  are:  (1)  Dis- 
covery. (2)  Location.  (3)  Record. 

Discovery  the  Inception  of  Title. 

The  discovery  of  a  lode  of  itself  gives  title  to 
the  vein  for  such  length  of  time  as  is  allowed  by  law 
for  the  completion  of  the  location  and  record  (Hur- 
ley v.  Ennis,  12  M.  R.  360;  Erhardt  v.  Boaro,  4  M.  R. 
432;  113  U.  8.  527);  and  when  the  location  and  record 
are  made,  if  made  in  due  time,  the  inception  of  title 
relates  back  to  the  date  of  discovery.  (Burke  v.  Mc- 
Donald, 29  Pac.  98.)  From  this  fact  a  later  record 
may  show  an  older  and  better  title  than  a  record 
made  several  months  earlier;  Patterson  v.  Hitchcock, 


30  DISCOVERY  AND  LOCATION. 

.)  M.  R.  .')',>.  For  this  reason  it  is  advisable  for  the 
location  certificate  to  recite  the  date  of  discovery  as 
well  as  the  date  of  location. 

If  the  statute  or  district  rule  does  not  fix  a  spe- 
cific time  for  the  discoverer  to  follow  up  his  discovery 
the  common  law  allows  him  a  reasonable  time  to  do 
each  act  required. 

The  fact  of  discovery  must  be  proved  by  the 
party  alleging  it  as  the  inception  of  his  possessory 
right.— Sands  v.  Cruikshank,  87  N.  W.  589.  Where  a 
location  is  made  without  discovery  the  land  remains 
public  domain  until  there  be  a  discovery.  Tuolumne 
Co.  v.  Maier,  66  Pac.  863. 

The  Vein  Must  Be  Reached. 

The  discovery  is  not  complete  until  the  vein  it- 
self is  disclosed.  The  finding  of  float  or  loose  quartz 
is  not  sufficient.  There  is  a  custom  generally  re- 
spected among  miners,  when  any  person  has  discov- 
ered indications  of  a  lode  and  is  diligently  following 
up  these  indications,  to  allow  thirty  days  in  which 
to  uncover  the  deposit;  but,  if  another,  by  a  shorter 
cut,  should  first  actually  reach  the  vein,  it  would 
seem  that  the  first  prospector,  except  as  qualified  by 
the  Boaro  case  cited  in  the  next  paragraph,  could  as- 
sert no  priority;  and  such  has  been  the  tenor  of  the 
decisions. — Upton  v.  Larkin,  6  Pac.  66;  North  N.  Co. 
v.  Orient  Co.  9  M.  R.  529;  Overman  Co.  v.  Corcoran, 
1  M.  R.  691.  In  Walsh  v.  Mueller,  J/0  Pac.  292,  the 
facts  which  constituted  the  discovery  are  stated 
and  held  such  clear  proof  as  warranted  the  reversal 
of  a  finding  that  there  was  no  discovery. 

Prospector's  Rights  Before  Discovery. 

If,  however,  a  prospector  has  discovered  float  or 
other  indications  of  the  immediate  presence  of  the 
vein  and  keeps  diligently  at  work,  such  inchoate  dis- 
covery has  practically  been  held  by  the  National  Su- 
preme Court  in  Erhardt  v.  Boaro,  15  M.  R.  447,  equiv- 
alent to  the  discovery  of  the  vein  in  place.  If  it  does 
not  go  so  far  as  to  decide  that  the  prospector  could 


DISCOVERY  AND  LOCATION.  31 

at  once  locate  upon  such  indications,  it  does  decide 
that  he  has  not  only  the  right  to  be  protected  in  his 
possession  while  following  up  such  indications,  but 
that  he  will  be  protected  to  the  extent  of  a  full  claim 
when  his  location  is  complete. 

Excluding  the  fact  of  the  intimidation  which  was 
in  proof  in  that  case,  it  is  difficult  to  reconcile  the 
opinion  with  the  Colorado  Statute,  which  requires  a 
well  denned  crevice  to  be  disclosed,  and  with  the  lan- 
guage of  the  R.  S.  Sec.  2320,  which  prohibits  any 
location  until  the  discovery  of  the  vein.  Whatever 
the  effect  of  the  decision  in  giving  precedence  to 
the  prospector  upon  the  floe  as  against  the  actual 
discoverer  of  the  vein  itself,  it  ought  at  least  to  be 
certain  that  no  such  disclosure  of  indications  short 
of  uncovering  the  vein  in  place,  would  hold  as  a  dis- 
covery sufficient  to  stake  and  record  upon  and  leave 
to  the  protection  of  the  law,  as  the  miner  may  do 
when  his  discovery,  location  and  record  upon  the  lode 
in  £lace  are  once  absolute  and  complete;  but  when 
accompanied  by  his  actual  presence  on  the  ground 
with  notice  posted,  the  question  of  prior  discovery  in 
fact  in  such  case  remains  a  question  for  the  jury. 

The  Discoverer  in  Law  is  not  necessarily  the  orig- 
inal finder,  but  any  one  who,  knowing  of  the  exist- 
ence of  the  mineral,  takes  some  step  toward  an 
appropriation  of  the  land  which  contains  it. — Ne- 
vada Go.  v.  Home  Co.  98  Fed.  673;  Jupiter  Co.  v. 
Bodie  Co.  4  M.  R.  411.  It  is  assumed,  of  course, 
in  such  case  that  the  original  actual  discoverer 
failed  to  perfect  his  initiatory  first  right  by  loca- 
tion. The  vein  may  be  disclosed  in  a  pit  sunk  on 
it  before  by  a  stranger. — Hayes  v.  Lavagnino.  53 
Pac.  1029. 

A  Location  on  Float  Ore,  the  discovery  opening 
not  showing  the  lode  in  place,  has  been  expressly 
held  to  be  invalid.  Several  tons  of  such  ore  had 
been  extracted,  but  the  vein  itself  from  which  it 


32  DISCOVERY  AND  LOCATION. 

came   had   not   been    defined. — Waterloo   Co.   v.   Doe, 
56  Fed.  685. 

On  the  other  hand  an  Idaho  decision  allowed  a 
location  to  stand  good  made  upon  "indications  of 
mineral,"  the  report,  however,  leaving  it  very  indef- 
inite as  to  what  these  indications  were. — Burke  v. 
McDonald,  29  Pac.  98. 

Discovery  After  Location. 

If  a  location  be  made  before  discovery,  but  is 
followed  by  a  discovery  in  the  discovery  shaft,  be- 
fore any  adverse  rights  intervene,  such  subsequent 
discovery  cures  the  original  defect  and  the  claim  is 
valid.— McGinnis  v.  Egbert,  15  M.  R.  329;  Golden 
Terra  Co.  v.  Mahler,  4  M.  R.  390;  Jupiter  Co.  v.  Bodie 
Co.  4  M.  R.  411;  Zollars  v.  Evans,  4  M.  R.  407;  North 
Noonday  Co.  v.  Orient  Co.  9  M.  R.  529;  Erwin  v. 
Perego,  93  Fed.  608;  Nevada  Co.  v.  Home  Co.  98  Fed. 
673;  Brewster  v.  Shoemaker,  63  Pac.  309;  and  the 
Land  Department  has  followed  these  rulings. — £8  L. 
D.  526. 

But  where  a  location  and  record  were  made  with 
no  discovery,  a  subsequent  discovery  will  not  relate 
back  and  cut  out  an  intervening  location. — Beals  v. 
Cone,  62  Pac.  948. 

Discovery  and  Discovery  Shaft  Distinguished. 

The  fact  of  discovery  is  a  fact  of  itself,  to  be 
totally  disconnected  from  the  idea  of  discovery  shaft. 
The  discovery  shaft  is  a  part  of  the  process  of  loca- 
tion, subsequent  to  discovery.  If  a  lode,  for  instance, 
be  discovered  in  a  cross-cut  run  to  operate  some  other 
known  vein,  or  if  a  prospect  hole  be  dug  on  the  out- 
crop of  a  lode,  and  no  steps  are  taken  to  stake  and 
record  such  lode,  it  becomes  no  more  the  property  of 
the  owner  of  the  cross-cut,  or  of  the  party  who  dug 
the  hole,  than  if  he  had  never  happened  to  strike  it, 
and  although  he  could  have  followed  up  the  discovery 
by  perfecting  title,  his  neglect  so  to  do  is  equivalent 


DISCOVERY  AND  LOCATION.  33 

to  abandonment  of  the  inchoate  right  given  by  dis- 
covery.— Willeford  v.  Bell,  49  Pac.  6. 

The  Discovery  Need  Not  Show  Pay  Ore. 

It  is  sufficient  that  it  disclose  such  a  crevice 
as  a  miner  would  be  willing  to  further  open  and  fol- 
low.— McShane  v.  Kenkle,  44  Pac.  919;  Shreve  v.  Cop- 
per Bell  Co.  28  Pac.  31 5;  Muldrick  v.  Brown,  61  Pac. 

428. 

Comparative  Size  or  Value. 

If  there  is  once  found  a  lode  such  as  is  conceded 
to  be  one  upon  which  a  prospector  may  lawfully  lo- 
cate, and  he  has  made  such  a  discovery  as  justifies 
a  location  upon  it,  it  makes  no  difference  what  its  size 
or  value  as  compared  to  the  size  or  value  of  other 
veins  asserting  hostile  title  against  such  location. — 
Book  v.  Justice  Co.  58  Fed.  125. 

Proof  of  Mineral  Contents. 

The  discovery  must  be  of  a  mineral  bearing  vein 
or  deposit.  The  proof  of  mineral  value  does  not  re- 
quire an  assay,  although  an  assay  if  taken  is  of  mate- 
rial value  as  evidence. — Healey  v.  Rupp,  63  Pac.  319. 

What  is  quartz  or  mineral  bearing  rock  is  de- 
terminable  by  the  eye  in  most  cases  and  such  ores  as 
galena,  zink-blende,  copper  pyrites  and -many  others 
necessarily  indicate  mineral  contents.  There  are, 
however,  varieties  of  ochre  and  other  discolored  earth 
and  rock  which  may  or  may  not  carry  any  kind  of 
valuable  mineral,  in  which  instances  an  assay  or^ 
other  test  in  common  reason  should  be  required. 

Lode  Found  Outside  of  Discovery  Shaft. 

It  has  been  decided  in  some  of  the  States  that 
although  no  lode  was  found  in  the  discovery  shaft, 
its  disclosure  elsewhere  within  the  claim  before  any 
adverse  rights  had  accrued  would  validate  the  claim. 
— Harrington  v.  Chambers,  1  Pac.  362;  affirmed  111 
U.  S.  350;  North  Noonday  Co.  v.  Orient  Co.  9  M.  R. 
529.  But  to  the  contrary,  in  Colorado  under  its  stat- 
ute is  the  case  of  Van  Zandt  v.  Argentine  Co.  4  M.  R. 
2 


34  DISCOVERY  AND  LOCATION. 

441;  Terrible  Co.  v.  Argentine  Co.  89  Fed.  583;  af- 
firmed 122  U.  8.  478.  And  if  it  be  true  that  the  sink- 
ing of  the  discovery  within  patented  lines  or  the  pat- 
enting of  the  discovery  shaft  by  a  hostile  claim  in- 
validates the  entire  claim;  and  if  the  discovery  shaft 
be,  as  it  is,  the  point  from  which  both  length  and 
width  of  the  claim  are  determined,  the  point  at  which 
the  notice  is  to  be  posted,  and  where  it  is  required  in 
terms  by  the  language  of  the  statute  to  show  a  well 
defined  crevice,  and  the  lode  in  place — it  seems  in- 
consistent to  hold  that  discovery  elsewhere  would  be 
of  any  avail  when  there  was  none  in  the  discovery 
shaft. 

The  question  has  been  before  the  Supreme  Court 
of  Colorado  in  two  cases  which  refer  to  the  point 
without  any  satisfactory  or  consistent  ruling  upon 
it— Beats  v.  Cone,  62  Pac.  948;  Healey  v.  Hupp,  63 
Pac.  319. 

In  a  Montana  holding,  based  strictly  on  the  con- 
struction of  the  statute  in  that  State,  it  was  ruled 
that  the  discovery  shaft  need  not  necessarily  show 
the  vein,  provided  it  was  disclosed  elsewhere  on  the 
claim.— O'Donnell  v.  G-lenn,  19  Pac.  302. 
By  Relocation  Upon  the  Shaft  showing  the  min- 
eral afterwards  discovered,  this  danger  can.  be 
avoided  where  no  hostile  discovery  has  intervened. 

A  new  record  based  on  a  new  discovery  is  an 
abandonment  of  the  original  location.— Seals  v.  Cone, 
62  Pac.  956. 

The  Point  at  Which  a  Lode  is  Discovered  is  not 
material.  It  may  be  discovered  at  the  surface 
where  it  outcrops  above  all  surrounding  country 
rock;  or  under  the  slide  near  the  surface  at  its  true 
apex,  by  shaft,  open  cut  or  boom  ditch;  or  at  a 
greater  depth  by  a  tunnel  cutting  the  vein  horizon- 
tally across  its  dip,  or  by  a  shaft  striking  it  perpen- 
dicularly upon  the  incline. 

The  Discovery  Shaft  need  not  be  sunk  at  the  point 
where  the  lode  was  first  actually  discovered.  The 


DISCOVERY  AND  LOCATION.  35 

prospector  has  the  right  to  choose  a  more  conven- 
ient spot  from  which  to  base  and  outline  his  claim. 
— Harrington  v.  Chambers,  1  Pac.  375. 

All  Methods  of  Discovery,  whether  by  shaft,  cut, 
tunnel,  boom-ditch  or  otherwise,  are  recognized  by 
the  statutes  or  district  regulations  everywhere,  the 
only  distinction  being,  where  a  discovery  of  a  cer- 
tain depth  and  showing  certain  things  is  required, 
that  when  discovered  at  the  surface  or  in  the  slide 
there  must  be  a  shaft  at  least  ten  feet  deep,  or 
deeper,  if  necessary  to  show  a  well  denned  crevice; 
while  if  disclosed  in  a  cross-cut  or  tunnel,  the  vein 
must  be  cut  and  a  well  defined  crevice  exposed,  at 
least  ten  feet  below  the  surface. 

Discovery  by  Prospecting  Drill. 

The  discovery  of  a  lode  or  deposit  by  either  hor- 
izontal or  vertical  drilling  would  doubtless  fulfill  all 
the  conditions  of  a  legal  discovery,  and  would  operate 
to  give  the  party  the  legal  time  allowed  to  complete 
a  discovery  shaft;  but  the  idea  that  a  drill-hole  would 
be  considered  as  the  equivalent  of  a  discovery  shaft 
can  not  be  entertained.  It  would  be  a  physical  im- 
possibility for  such  drill-hole  to  show  a  well  defined 
crevice,  and  a  drill-hole  is  neither  a  shaft,  cut  or 
other  opening  such  as  are  enumerated  among  those 
things  which  may  constitute  a  discovery  shaft  or  cut. 
The  discovery  of  a  lode  is  a  matter  of  interest  to  the 
prospector  only;  but  if  he  intend  to  appropriate  the 
same  it  must  be  by  such  physical  workings  as  shall 
amount  to  a  notice  to  third  parties.  A  drill-hole 
is  not  a  notorious,  physical  land  mark,  and  could  not 
be  construed  as  such  notice. 

Discovery  Holds  How  Long? 

A  discovery  in  Colorado,  Wyoming,  North  or 
South  Dakota,  Montana  and  Oregon  holds  the  claim 
for  the  sixty  days  allotted  to  sink  the  discovery  shaft. 
— Marshall  v.  Barney  Peak  Co.  47  N.  W.  Rep.  290. 
Arizona,  Nevada,  New  Mexico  and  Washington  allow 
ninety  days.  Idaho  allows  sixty  days,  but  claim  must 


36  DISCOVERY  AND  LOCATION. 

be  staked  within  ten  days  after  discovery.  In  Alaska 
the  discoverer  has  ninety  days  to  record,  but  district 
rules  may  prescribe  shorter  periods  for  shaft  or  other 
location  work. 

In  those  States  which  prescribe  no  specific  time, 
what  is  denominated  a  reasonable  time  is  allowed  in 
which  to  complete  the  location.  What  is  a  reasonable 
time  depends  upon  circumstances,  but  it  is  not  to  be 
stretched  indefinitely.  In  Patterson  v.  Hitchcock,  5 
M.  R.  542,  it  was  ruled  that  ninety  days  to  sink  a 
shaft  was  more  than  a  reasonable  time.  In  Doe  v. 
Waterloo  Co.  55  Fed.  12,  a  prospector  completed  his 
staking  in  twenty  days,  and  he  was  held  to  be  in 
good  time. 

As  soon  as  a  vein  is  found  by  the  prospector  it  is 
the  custom  to  place  at  the  point  of  discovery  a  notice 
about  as  follows: 

CONTENTION    LODE. 

The  undersigned  claims  sixty  days  to  sink  discovery 
shaft  and  three  months  to  record  on  this  vein.  January 
4,  1903. 

JOHN  S.  YOUNG,,  Discoverer. 

But  if  it  is  bona  fide  the  intention  of  the  discov- 
erer to  complete  his  location,  the  absence  of  such 
notice  would  not  be  fatal.  This  is  not  the  notice  re- 
quired when  the  location  is  made  (page  38).  It  is  a 
mere  warning  to  other  prospectors  that  some  one  has 
acquired  a  prior  right  to  locate  -on  that  crevice.— 
Erhardt  v.  Boaro,  15  M.  R.  472. 

In  a  New  Mexico  case  this  peculiar  language  is 
used:  "The  locator  is  entitled  to  no  appreciable  time 
after  discovery  to  determine  whether  he  desires  to 
locate  and  claim  the  benefit  of  his  discovery.  Discov- 
ery and  posting  notice  of  claim,  therefore,  must  be 
practically  cotemporaneous."  Deeney  v.  Mineral  Co. 
67  Pac.  725. 

If  by  discovery  is  meant  mere  ocular  perception 
of  an  outcrop  visible  to  all  it  may  be  true,  but  every- 
where, where  the  discovery  is  the  result  of  the  labor 
of  the  prospector  he  has  without  doing  any  further  act 


DISCOVERY  AND  LOCATION.  37 

a   reasonable,   or   the   statutory  time,   to   perfect  the 
location. 

Renewing  Notice. 

It  seems  useless  to  add  that  if  the  discovery  shaft 
is  not  completed  within  the  legal  time  it  is  mere  folly 
to  pull  down  the  old  notice  and  put  up  another  of  a 
later  date.  The  sixty  days  (or  other  statutory  pe- 
riod, or  the  reasonable  time)  begin  to  run  from  the 
date  of  discovery,  and  no  self-serving  act  of  the  pros- 
pector can  enlarge  the  time. 
Location. 

The  location  of  a  lode  consists  in  defining  its 
position  and  boundaries,  and  in  doing  such  acts  as 
indicate  and  publish  the  intention  to  occupy  and  hold 
it  under  the  license  of  the  United  States. 

The  formal  parts  of  location  include: 

1.  The  location  notice  at  discovery. 

2.  The  discovery  shaft. 

3.  The  boundary  stakes. 

Location  Stake. 

Although  a  very  old  custom,  the  requirement  of 
the  Colorado  Act  of  1866,  repeated  in  the  present  Act 
of  1874  as  to  a  location  stake,  was  not  always  con- 
sidered imperative,  but  there  are  decisions  under  the 
present  statute  which  enumerate  it  as  one  of  the  con- 
stituent parts  of  a  complete  location. — Strepey  v. 
Stark,  7  Colo.  618;  Cheesman  v.  Shreeve,  40  Fed.  787; 
17  M.  R. 

In  fact  this  location  notice  was  in  early  locations 
the  principal  and  often  the  only  specific  act  of  loca- 
tion. It  was  a  universal  custom  before  any  statutes 
existed  purporting  to  regulate  location. 

The  words  of  the  Act  require  "a  plain  sign  or 
notice,"  but  there  never  has  been  any  uniformity 
among  prospectors  in  the  details  of  the  notice,  or  in 
the  mode  of  posting  it.  It  may  be  substantially  com- 
plied with  by  writing  on  a  blazed  tree  or  on  a  board 
nailed  at  discovery,  or  by  legible  carving,  or  by  any 


38  DISCOVERY  AND  LOCATION. 

other  rude  but  honest  form  of  notice,  so  that  it  be 
intelligible  and  open  to  observation;  but  the  loose 
practice  of  writing  on  a  chip  or  stick  thrown  into  the 
discovery  hole,  is  an  attempt  to  evade  or  abuse  the 
fair  requirement  of  the  law.  In  Gird  v.  California 
Oil  Co.  60  Fed.  531;  17  M.  R.  ...,  the  notice  was 
placed  in  a  tin  can  on  a  mound  of  stones  and  it  was 
upheld.  The  following 

FOKM   OF    NOTICE    ON    STAKE. 

THE  FAMINE  LODE,,  discovered  by  Charles  J.  Allen,  Feb- 
ruary 17,  1903.  Claim  750  feet  easterly  and  750  feet 
westerly  from  discovery.  CHARLES  J.  ALLEN. 

fully  complies  with  the  law  and  custom,  and  would 
still  be  sufficient  without  signing  at  the  foot  and  with- 
out stating  the  number  or  direction  of  feet  claimed. 

This  notice  need  not  call  for  monuments  or  ties — 
that  is  required  of  the  record  only. — Poujade  v.  Ryan, 
33  Pac.  660;  Brady  v.  Husby,  33  Pac..  801. 

Such  notice  holds  the  claim  for  a  reasonable  time 
before  setting  the  boundary  stakes  or  other  work. 
Union  Co.  v.  Leitch,  64  Pac.  829. 

Right  to  Swing  Claim. 

In  Sanders  v.  Noble,  55  Pac.  1037,  the  Never 
Sweat  discoverers  had  posted  their  notice  claiming 
500  feet  Southerly  and  1,000  feet  Northerly.  During 
the  ninety  days  allowed  for  filing  location  certificate 
other  parties  discovered  the  Yukon.  They  had  read 
the  Never  Sweat  notice  and  purposely  kept  clear  of  its 
ground.  The  Court  held  that  the  law  gave  the  lo- 
cators full  ninety  days  to  choose  where  they  would 
ultimately  fix  their  corners;  that  the  Never  Sweat 
locators  were  not  estopped  by  their  notice  and  could 
swing  their  location  nearly  at  right  angles  and  take 
in  the  Yukon  ground.  The  opinion  is  very  thorough 
and  contains  a  full  review  of  previous  cases,  but  does 
not  meet  the  proposition:  that  while  the  prospector 
may  have  such  full  time  for  such  purposes  he  loses 
it  the  moment  he  by  a  positive  act  limits  the  general 
area  which  his  monuments  when  set  will  include. 


DISCOVERY  AND  LOCATION.  39 

We  can  not  for  a  moment  believe  that  a  prospector 
after  posting  notice  claiming  750  feet  easterly  and  750 
feet  westerly,  could  dispossess  an  intervening  party 
who  had  sunk  a  hole  800  feet  easterly  from  such  no- 
tice. But  such  an  instance  is  scarcely  distinguish- 
able from  the  decision  quoted.  See  Wiltsee  v.  King 
Co.  60  Pac.  896. 

Easterly,  Westerly. 

In  the  latter  case  the  location  notice  claimed  so 
many  feet  easterly  and  westerly.  It  was  held  that 
in  such  preliminary  paper  the  words  were  not  to  be 
construed  as  due  east  and  west,  but  that  he  could 
locate  on  any  course  within  45  degrees  of  east  and 
west. 

Discovery  Shaft  Must  be  on  Public  Domain. 

The  discovery  must  be  sunk  upon  unoccupied 
public  land;  that  is  to  say,  it  must  be  outside  of  the 
lines  of  any  patent  or  even  of  any  valid  location. — 
Upton  v.  Larkin,  6  Pac.  66;  Little  PgTi.  Go.  v.  Amie 
Co.  17  Fed.  57;  Armstrong  v.  Lower,  15  M.  R.  631; 
Golden  T.  Co.  v.  Mahler,  4  M.  R.  390;  Moyle  v.  Bullene, 
44  Pac.  69;  Watson  v.  May~berry,  49  Pac.  479;  Tuo- 
lumne  Co.  v.  Maier,  66  Pac.  863;  Reynolds  v.  Pascoe, 
Id.  1064. 

In  the  Larkin-Upton  case,  the  discovery  shaft  was 
partly  on  patented  ground  but  a  part  of  it  showing 
the  vein  or  a  portion  of  the  vein  was  on  clear  ground 
and  its  validity  was  upheld.— 7  Mont.  449;  144  U.  8.  19. 

Exceptional  Case — Town  Site. 

Assuming  that  all  known  lodes  have  been  ex- 
cepted  from  a  Town  Site  Patent,  a  discovery  shaft 
may  be  sunk  upon  and  within  the  area  of  its  patent. — 
Moyle  v.  Bullene,  44  P^c.  69. 

Patent  Over  Discovery  Shaft. 

And  where  a  party  allows  a  claim  held  by  other 
parties  to  go  to  patent  over  his  discovery  shaft,  "the 
loss  of  the  discovery  is  a  loss  of  the  location."  G-wil- 


40  DISCOVERY  AND  LOCATION. 

Urn  v.  Donnellan,  15  M.  R.  482;  Milter  v.  Girard,  33 
Pac.  69;  Girard  v.  Carson,  44  Pac.  508. 

Where  a  senior  claimant  allows  a  location  to  be 
made  over  his  discovery  shaft  and  to  go  to  patent,  his 
claim  becomes  a  void  location  not  only  as  to  such 
patent,  but  as  to  all  persons  and  claims. 

In  an  instance  with  special  equities  where  an  ag- 
ricultural patent  was  issued  covering  that  end  of  a 
lode  claim  on  which  all,  or  nearly  all,  the  work  had 
been  done  and  where  the  clear  end  of  the  claim  could 
be  practically  reached  only  by  work  commenced  on 
the  patented  end,  the  court  distinguished  the  case 
and  held  that  Gwillim  v.  Donnellan  did  not  apply.— 
Richard  v.  Wolfling,  32  Pac.  971;  Post,  p.  120. 

Sale  of  Discovery  Shaft. 

But  the  sale  of  that  part  of  the  claim  containing 
the  discovery  shaft  does  not  invalidate  the  title  of 
that  part  which  the  locator  retains. — Little  Pgh.  Co. 
v.  Amie  Co.  11  Fed.  57;  and  in  this  case  the  grantees 
had  afterwards  gone  to  patent  on  the  ground  contain- 
ing the  discovery  shaft,  as  parcel  of  another  claim. 
A  distinction  can  readily  be  drawn  between  this  and 
the  Donnellan  case,  supra;  and  yet  they  are  so  close 
that  it  may  be  considered  dangerous  to  convey  that 
portion  of  the  lode  containing  the  discovery  without 
proper  covenants  against  patenting  it  as  parcel  of 
another  claim. 

Claim  Must  Include  Discovery  Shaft. 

It  is  self-evident  that  the  claim  must  include  the 
discovery  shaft,  and  proof  that  by  change  of  boun- 
daries they  were  made  so  as  to  exclude  the  discovery 
shaft  is  admissible  to  defeat  such  location.— McGin- 
nis  v.  Egbert,  8  Colo.  o4;  15  M.  R.  329. 

A  location  of  certain  bounds  upon  a  discovery 
shaft  exterior  to  such  bounds,  upon  a  lode  which  on 
its  strike  would  extend  into  the  lines  staked  off,  is 
a  claim  without  a  discovery  and  is  void. — Michael  v. 
Mills,  45  Pac.  429. 


DISCOVERY  AND  LOCATION.  41 

Depth  of  Discovery  Shaft. 

In  the  Colorado  case  of  the  Maine  and  Phoenix 
lodes,  located  under  the  act  of  1866,  Hon.  Judge 
Belford  decided  that  when  a  discovery  shaft  was 
sunk  upon  sloping  ground  the  average  might  be 
taken  to  determine  whether  the  shaft  was  of  legal 
depth;  but  since  June  15,  1874,  it  must  be  at  least 
ten  feet  from  the  lowest  part  of  the  surrounding  sur- 
face. 

After  a  shaft  has  been  sunk  ten  feet,  the  ground 
at  the  collar  may  cave,  or  the  shaft  may  become  so 
filled  with  debris,  or  the  making  of  a  platform  or 
raised  collar  may  make  it  difficult  to  ascertain  the 
exact  line  of  the  original  rim  of  the  shaft,  or  to  ascer- 
tain its  original  bottom.  In  view  of  these  facts  and 
of  the  essential  importance  of  the  shaft  being  full  ten 
feet  deep,  it  is  always  advisable  to  sink  it  two  or 
three  feet  deeper  and  remove  all  ground  for  cavil  or 
contention. 

The  Shaft  Must  be  Ten  Feet  Deep,  by  statute  in 
all  the  mining  States  except  Alaska?  California, 
North  Dakota  and  Utah.  Idaho  requires  also  cer- 
tain dimensions,  i.  e.,  not  less  than  sixteen  square 
feet  area.  In  Washington  ho  shaft  is  required  west 
of  the  summit  of  the  Cascade  mountains. 

In  those  States  whose  statutes  do  not  mention 
any  specific  depth  the  discovery  point  must  show  the 
lode  by  a  hole  or  cut  sunk  or  driven  to  or  on  the 
vein.  But  in  those  States  if  the  discovery  notice 
is  posted  on  a  naked  outcrop  no  hole  or  cut  is  neces- 
sary unless  required  by  district  rule,  or  by  statute  as 
in  North  Dakota,  which  requires  a  shaft,  but  does  not 
fix  the  depth. 

The  State  Statute  requiring  a  specific  depth  of 
ten  feet  is  a  valid  exercise  of  the  right  of  regulation 
allowed  to  the  legislature,  under  the  Congressional 
Act. — Sisson  v.  Sommers,  55  Pac.  829. 


42  DISCOVERY  AND  LOCATION. 

Subsequent  Deepening  of  Shaft. 

Where  the  discovery  shaft  has  not  reached  the 
legal  depth  at  time  of  record,  but  has  been  completed 
to  that  depth  afterwards  and  before  any  adverse 
rights  have  intervened,  such  discovery  shaft  is  valid. 
This  is  a  matter  of  course  on  the  general  ruling  as  to 
performance  of  the  various  acts  of  location  being  suf- 
ficient in  all  instances  where  complete  before  third 
parties  assert  rights,  though  not  within  the  statutory 
period. — McGinnis  v.  Egbert,  15  M.  R.  329,  and  cases 
there  cited. 
Discovery  Must  Show  Well  Denned  Crevice. 

Besides  reaching  a  certain  depth,  a  well  defined 
crevice  must  be  found  in  the  shaft. — Cheesman  v. 
Shreeve,  40  Fed.  787;  11  M.  R.  —.  "Crevice"  means 
a  "mineral  bearing  vein."— Seals  v.  Cone,  62  Pac. 
958. 

If  a  crevice  does  not  show  in  ten  feet,  the  shaft 
must  go  deeper;  if  it  appear  sooner,  the  ten  feet  must 
still  be  completed.  The  crevice  shows  the  lode  dis- 
covered, the  depth  shows  the  lode  appropriated;  even 
before  the  passage  of  any  ten-foot  shaft  law,  such  a 
crevice  was  required  to  be  shown,  as  decided  by  Hon. 
Judge  Belford  upon  the  location  of  the  Bowman  lode; 
but  in  the  Eagle-Badger  injunction  case,  decided  at 
Denver,  Hon.  Judge  Wells,  while  holding  the  neces- 
sity of  a  discovery  shaft  of  the  depth  fixed  by  statute, 
also  ruled  that  the  term  "crevice"  must  be  taken  in 
connection  with  the  nature  of  the  deposit,'  and  that  if, 
as  was  suggested,  the  Mt.  Lincoln  discoveries  were 
not  true  veins  or  fissures,  the  shaft  might  pass  en- 
tirely through  the  deposit  and  still  remain  a  valid 
monument  of  occupation. 

It  Need  Not  Contain  Ore  or  Mineral,  but  it  must 
show  mineral  bearing  rock— that  is  the  gangue  or 
crevice  nJRrial  of  the  vein — Copper  Globe  Co.  v.  All- 
mann,  If  Pac.  1020 — and  it  is  error  to  omit  this, 
as  one  of  the  essential  elements  of  a  discovery 


DISCOVERY  AND  LOCATION  43 

shaft  in  an  instruction  purporting  to  define  such  ele- 
ments.— Bryan  v.  McCaig,  10  Colo.  309.  It  need  not 
show  pay  ore. — Muldrick  v.  Brown,  61  Pac.  428. 

Discovery  Shaft  Need  Not  Show  Wall. 

It  has  been  decided  in  Montana  (Foote  v.  Na- 
tional Co.  9  M.  R.  605)  that  at  least  one  wall  of  the 
lode  must  be  disclosed  before  the  vein  can  be  consid- 
ered as  discovered.  But  this  decision  makes  the  dis- 
covery dependent  upon  a  single  incident,  which  is  not 
by  any  means  the  only  proof  of  the  existence  of  a 
vein.  This  case,  as  well  as  O'Donnell  v.  Glenn,  19 
Pac.  302,  are  based  on  a  requirement^  of  the  Montana 
Statute  to  such  effect  (since  repealed),  and  not  upon 
reason  or  the  nature  of  the  subject-matter,  and  have 
therefore  no  pertinency  to  discoveries  made  under  the 
regulations  of  an  entirely  different  Statute,  or  in  ter- 
ritory where  there  is  no  statutory  regulation'  of  the 
subject. — Fleming  v.  Daly,  55  Pac.  947.  There  are 
certain  classes  of  deposits  which  are  doubtless  lodes 
or  veins  within  the  intent  of  the  Act  of  Congress, 
which  show  no  well  defined  walls  after  thorough  de- 
velopment, much  less  within  that  amount  of  working 
which  is  required  as  the  basis  of  a  record. 

Shaft  Through  Slide  or  Country. 

Nor  does  it  make  any  difference  that  the  shaft 
is  started  in  slide  or  upon  a  stratum  of  country  rock, 
if  it  pierce  through  the  slide  or  country  and  find  a 
crevice  at  a  depth  of  ten  feet  or  more.  Such  a  shaft 
fulfills  all  the  statutory  conditions.  But  it  must  reach 
the  lode  in  place;  it  is  not  enough  that  it  strike 
a  mass  of  ore  mixed  with  broken  slide  and  country. 
— Van  Zandt  v.  Argentine  Co.  4  M.  R.  441;  Waterloo 
Co.  v.  Doe,  56  Fed.  685. 

Discovery  in  Broken  Ground. 

It  is  a  common  incident  to  find  the  lode  at  sur- 
face with  its  sides  and  body  more  or  l^L  shattered, 
or  perhaps  with  the  entire  top  of  the  v^p  broken 
over  with  the  adjacent  country.  Such  a  lode  is  never- 


44  DISCOVERY  AND  LOCATION. 

theless  in  place.  The  shattering  and  breaking  over 
are  only  mechanical  accidents  and  no  more  destroy 
the  position  of  the  vein  as  a  thing  in  place  than  a 
fault  breaks  the  legal  continuity  of  a  vein  followed 
on  its  strike. — Jones  v.  Prospect  Co.  31  Pac.  642. 

Separate  Discovery  for  Each  Claim. 

The  attempt  to  locate  two  full  claims  upon  one 
discovery  shaft  is  a  palpable  fraud. — 16  L.  D.  1;  Mc- 
Kinstry  v.  Clark,  4  Mont.  310;  Reynolds  v.  Pascoe, 
66  Pac.  1064.  It  is  sometimes  alleged  that  two  lodes 
cross  in  the  discovery  shaft,  but  no  ten-foot  shaft 
can  prove  such  fact  if  such  a  coincidence  ever  occurs, 
nor  would  it  alter  the  law  of  the  case  if  it  did  occur. 

Open  Cut,  Adit  and  Tunnel  Discoveries. 

All  the  mining  States  except  Utah,  California 
and  Alaska  practically  follow  the  Colorado  Statute 
providing  that  discovery  by  means  of  an  open  cut, 
adit,  cross-cut  or  tunnel  shall  be  equivalent  to  a 
shaft.  Where  the  discovery  is  by  cross-cut,  tunnel 
or  open  cut,  it  must  show  the  lode  at  a  depth  of  ten 
feet  below  the  surface;  that  is  to  say,  the  breast  of 
the  cut  or  tunnel  must  be  of  that  depth  at  its  bottom 
to  be  the  equivalent  of  a  ten-foot  discovery  shaft; 
but  where  discovery  is  by  an  adit,  the  Colorado  Su- 
preme Court  have  ruled  in  two  cases  that  it  need  not 
be  ten  feet  deep,  nor  any  specific  depth,  at  the  breast, 
but  that  the  adit  must  be  ten  feet  in  length  along 
the  vein. — Gray  v.  Truby,  6  Colo.  278;  Electro  Co. 
v.  Van  Auken,  9  Colo.  204. 

In  the  latter  case  they  also  held  that  an  adit  need 
not  enter  cover  to  be  an  adit.  The  effect  of  the  latter 
decision  is  to  confuse  all  the  distinctions  between  an 
adit  and -an  open  cut,  so  that  if  the  hole  or  stripping 
discloses  ten  feet  in  length  of  the  vein,  it  may  be 
styled  an  adit,  although  in  fact  an  open  cut.  It  is  not 
safe  to  iflfy  on  this  construction,  and  no  prospector 
should  consider  his  discovery  complete  until  he  has 


DISCOVERY  AND  LOCATION.  45 

ten  feet  in  depth  at  the  breast  of  his  cut,  or  a  covered 
adit  at  least  ten  feet  in  along  the  vein. 

The  words  cross-cut  and  tunnel  are  identical 
terms,  except  that  the  former  is  usually  applied  to 
short  workings  and  the  latter  to  those  of  greater 
length. 

In  States  which  have  no  such  statute  the  law  is 
the  same  upon  general  principles.  It  can  make  no 
difference  to  the  government  nor  to  the  rights  of 
other  prospectors  whether  the  discovery  be  by  verti- 
cal or  horizontal  cutting.  Either  mode  complies  with 
both  the  letter  and  the  spirit  of  the  law. 

Secret  Underground  Discovery. 

The  only  class  of  discoveries  which  would  sug- 
gest any  difficulty  is  where,  by  extending  the  works 
of  an  old  claim,  the  drift  or  an  underground  cross- 
cut or  other  working,  passes  beyond  the  claim  and 
discloses  either  a  new  vein,  or  the  extension  of  the 
old  vein  into  clear  ground.  We  can  not  see  any  ob- 
jection to  locating  such  claim  upon  the  discovery  so 
made  below,  the  notice  being  placed  on  surface  at 
the  proper  point  above  the  underground  discovery 
and  referring  to  such  point  of  discovery. 

In  Little  Gunnell  Co.  v.  Kimber,  1  M.  R.  536,  a 
secret  underground  working  from  an  old  claim  was 
not  allowed  to  hold  as  a  valid  basis  for  re-location 
of  an  adjoining  claim,  but  that  decision  was  upon 
the  letter  of  the  Colorado  Statute  concerning  re- 
locations which  in  terms  requires  a  shaft  to  be  sunk 
or  other  new  opening  to  be  made,  nor  had  such  secret 
discovery  been  followed  by  proper  surface  notice. 

Notice  and  Staking  Upon  Cross-Cut  Discoveries. 

In  the  case  of  cross-cuts  or  tunnels  not  recorded 
under  the  Act  of  Congress,  the  point  on  surface 
above  the  discovery  intended  as  the  center  line  of  the 
claim  is  the  point  at  which  the  location  notice  is 
posted,  and  the  stakes  are  placed  to  embrace  an  area 
in  which  this  notice  stands  at  a  point  on  such  center 


46  DISCOVERY  AND  LOCATION. 

line.  The  discovery  in  the  cross-cut  will  of  course 
be  on  the  same  line  carried  down  vertically  unless  an 
allowance  is  made  for  the  dip.  With  the  exception 
of  the  point  of  placing  notice,  no  distinction  exists 
in  the  process  of  locating  and  recording  between  these 
cases  and  those  of  surface  discoveries. 

Discovery  in  Statutory  Tunnel. 

Where  a  lode  is  cut  in  a  tunnel  located  and  re- 
corded so  as  to  claim  -the  rights  of  a  prospecting 
tunnel  under  the  Act  of  Congress  (Sec.  2323)  we 
advise  where  practical  a  posting,  staking  and  record- 
ing of  each  lode  as  it  is  cut,  exactly  as  in  the  case 
of  discovery  in  an  unrecorded  cross-cut.  But  it  has 
been  held  that  such  discovery  in  a  located  tunnel  is 
good  and  will  hold  without  any  staking  on  the  sur- 
face against  a  subsequent  surface  discovery. — Ellet  v. 
Campbell,  18  Colo.  510.  In  the  case  referred  to  a 
notice  had  been  posted  at  the  mouth  of  the  tunnel 
and  a  record  had  been  made  reciting  the  discovery 
in  the  tunnel  and  claiming  the  proper  length  and 
width,  but  not  giving  surface  boundaries.  This  case 
was  affirmed  in  the  Federal  Supreme  Court,  so  that 
the  question  has  now  received  final  judicial  construc- 
tion. The  Court,  however,  concede  that  it  may  be 
true,  as  suggested  in  previous  Editions  of  the  Mining 
Rights,  that  before  a  patent  can  be  secured  to  the 
lode  there  must  be  a  surface  location. — Campbell  v. 
Ellet,  167  U.  S.  116. 

Where  the  discoverer  staked  the  claim  on  the 
projection  of  the  dip  found  in  his  cross-cut  (not  a 
statutory  tunnel)  to  surface,  the  location  was  held 
good. — Breivster  v.  Shoemaker,  63  Pac.  309. 

Staking  Boundaries. 

That  the  staking  of  the  surface  boundaries  of 
the  claim  has  been  required  upon  all  surface  locations 
made  since  May  10,  1872,  has  been  repeatedly  decided. 
— Gelcich  v.  Moriarty,  9  M.  R.  498;  Hauswirth  v. 
Butcher,  4  Mont.  299;  Gohres  v.  III.  Co.  67  Pac.  666; 
Deeney  v.  Mineral  Co.  Id.  724-  These  decisions  are 


DISCOVERY  AND  LOCATION.  47  v 

not  made  upon  local  statutes,  but  as  the  construction 
of  R.  S.  Sec.  2324,  above  printed;  nor  can  we  see  how 
any  other  construction  can  be  contended  for.  It  fol- 
lows, therefore,  that  since  May  10,  1872,  surface  stak- 
ing along  the  bounds  of  the  claim  has  been  required 
in  all  cases,  without  regard  to  State,  Territorial  or 
District  Legislation  requiring  such  staking.  Such 
legislation,  when  it  existed,  has  been  to  direct  the 
details  of  the  staking,  but  a  sufficient  staking  has 
been  required  under  the  Act  of  Congress  whether  the  • 
local  rule  has  been  silent  or  outspoken  on  this  point. 
The  Martin  White  case,  below  quoted,  is  to  the  same 
effect  and  gives  a  full  review  of  the  different  modes 
of  location  on  the  Pacific  Slope. 

It  may  be  true  in  instances,  that  hardship  results 
under  this  provision;  but  it  is  better  for  a  party  to 
lose  a  portion  of  his  vein  by  its  departure  from  its 
staked  lines,  than  that  he  be  allowed  to  leave  his  vein 
and  its  course  undetermined  until  a  rich  discovery  in 
the  vicinity  suggests  the  time  arrived  to  "prove  up" 
and  take  his  neighbor's  lode.  This  is  not  a  forced 
illustration— it  is  the  very  evil  which  the  law  is  in- 
tended to  prevent. — Gleeson  v.  Martin  White  Co.  9 
M.  R.  429;  Gonu  v.  Russell,  12  M.  R.  630;  Gilpin  Co.  v. 
Drake,  8  Colo.  586;  Sweet  v.  Webber,  7  Colo.  443. 

Posting  the  discovery  notice  is  not  the  equivalent 
of  marking  the  surface  boundaries. — Doe  v.  Waterloo 
Co.  70  Fed.  456. 

Corners  Set  on  Prior  Claims. 

The  setting  of  stakes  on  prior  locations  or  pat- 
ents has  been  held  valid.  Such  surveys  are  sustained 
with  the  reservation  that  such  technical  trespass  is 
accomplished  without  breach  of  the  peace. — Del  Monte 
Co.  v.  Last  Chance  Co.  Ill  U.  S.  55;  Bunker  Hill  Co. 
v.  Empire  State  Co.  109  Fed.  538;  30  L.  D.  420;  31 
Id.  121. 

The  Locator  Owns  Only  What  His  Lines  Enclose, 
although  not  chargeable  with  fault  in  making  them. 
It  is  better  for  him  to  lose  part  of  the  lode  than  to 


48  DISCOVERY  AND  LOCATION. 

make  title  dependent  on  the  result  of  developments 
made  after  lines  have  been  chosen. — Iron  Silver  Co. 
v.  Elgin  Co.  15  M.  R.  641. 

Three  Months  to  .Complete  Staking  is  the  time  al- 
lowed by  implication  from  the  Colorado  Stat- 
ute. The  discoverer  has  sixty  days  to  complete 
his  discovery  shaft  and  three  months  to  record.  If  his 
staking  is  completed  at  any  time  within  three  months, 
that  is,  within  the  period  allowed  between  the  date 
of  discovery  and  when  the  record  must  be  made,  it 
is  in  apt  time.  He  is  allowed  less  time  to  sink  his 
discovery  than  to  set  his  stakes,  because  he  may 
know,  as  soon  as  his  vein  is  disclosed,  where  to  sink; 
but  he  can  not  so  readily  know  the  course  of  the 
vein,  and  consequently  needs  time  for  this  part  of 
the  location,  inasmuch  as,  his  stakes  once  set,  he 
covers  no  more  of  his  vein  than  lies  within  them. — 
Erhardt  v.  Boaro,  15  M.  R.  J/72. 

Even  if  the  setting  of  his  stakes  is  delayed  be- 
yond the  period  of  three  months,  the  location  is  not 
invalidated  where  no  adverse  rights  have  intervened. 
— McGinnis  v.  Egbert,  15  M.  R.  329;  Crown  Point  Co. 
v.  Crismon,  65  Pac.  87. 

When  the  time  to  complete  staking  is  not  fixed 
by  statute  or  district  rule,  a  reasonable  time  is  al- 
lowed. Twenty  days  has  been  held  to  be  a  reasonable 
time. — Doe  v.  Waterloo  Co.  10  Fed.  J/56. 

All  Statutes  Limiting  Time  to  perfect  location 
and  record  are  directory  where  there  is  but  a  single 
claimant,  or  but  one  set  of  claimants,  and  delay  be- 
comes material  only  where  the  rights  of  third  par- 
ties have  intervened. 

Diagram  of  Location. 

The  diagram  of  a  lode  correctly  located,  under 
the  present  Colorado  law  (Act  of  1874),  will  show 
substantially  as  follows: 


DISCOVERY  AND  LOCATION.  49 

Post  Post  Post 


Discovery  Shaft**  Location  Stake 


Post  Post  Post 

ELEMENTS   OF   LOCATION. 

1st.  Discovery  Shaft  at  least  ten  feet  deep  from 
the  lowest  part  of  the  rim  at  the  surface,  and  show- 
ing a  well-defined  crevice. 

2d.  Location  Stake;  a  plain  sign  or  notice  con- 
taining the  name  of  the  lode,  the  name  of  the  lo- 
cator, and  the  date  of  discovery. 

3d.  Center  Stakes;  two  substantial  side  posts 
sunk  in  the  ground  and  hewed  on  the  side  which 
is  in  toward  the  claim.  These  side  posts  must  be 
sunk  in  the  center  of  each  side  line;  that  is,  in  a 
1,500  foot  claim,  750  feet  from  each  end  line. 

4th.  Corner  Stakes;  four  substantial  stakes,  one 
at  each  corner  of  the  claim,  sunk  in  the  ground  and 
hewed  on  the  two  sides  which  are  in  toward  the 
claim. 

5th.     Extra  Angles. 

It  is  the  invariable  custom  where  there  are  angles 
in  the  side  line,  to  place  a  stake,  hewed  on  the  side 
in  toward  the  claim,  at  each  angle. 

For  number,  position  and  marking  of  stakes  in 
the  several  States,  see  STATUTORY  REQUIREMENTS, 
page  iW. 

Must  Cover  Apex. 

The  stakes  of  the  location  must  include  the  apex 
of  the  vein,  and  in  so  far  as  they  fail  so  to  do  the 
claim  is  void  or  defective  to  that  extent.  That  is  to 
say:  the  theory  of  the  Statute  is  that  a  normal  loca- 
tion will  cover  the  apex  of  a  vein  and  have  the  right 
to  follow  the  vein  on  the  dip.  If  the  location  fail  to 
cover  the  apex  and  the  lode  dips  away  from  the  claim, 


50  DISCOVERY  AND  LOCATION. 

so  much  of  the  vein  is  clearly  lost;  if  after  losing 
the  apex  the  location  is  laid  so  as  to  cover  the  vein 
on  its  pitch  underneath  the  side  lines  as  it  dips  back 
into  or  under  the  side  lines,  another  question  arises. 
The  points  arising  in  this  class  of  cases  are  consid- 
ered under  "APEX." 

Locating  Without  Aid  of  Surveyor. 

In  locating  any  class  of  claim,  a  survey  is  always 
advisable. 

If  the  prospector,  however,  can  not  procure  a  pro- 
fessional surveyor  (and  it  is  often  impracticable),  a 
reasonable  degree  of  care  will  suffice  to  locate  his 
boundaries  with  certainty  sufficient  to  make  the  sub- 
sequent record  valid. 

The  record  is  merely  a  description  of  the  claim  as 
staked  on  the  ground;  if  not  properly  staked  the 
record  does  not  make  a  good  location,  but  if  the  loca- 
tion has  been  properly  made,  the  record  can  readily 
be  made  to  describe  it  fully,  whether  such  location 
has  been  made  by  a  surveyor  or  otherwise. 

The  discovery  shaft  being  taken  as  the  center 
of  the  claim  and  the  initial  point  of  location,  a  tape 
measurement  from  its  center  150*  feet  at  right  angles 
to  the  lode,  reaches  to  the  point  where  a  center  stake 
must  be  set;  return  to  discovery  shaft  and  continue 
the  same  line  on  the  other  side  the  same  direction 
and  set  the  second  center  or  side  stake;  at  right  an- 
gles to  this  line  and  across  the  center  of  discovery 
shaft  run  a  line  750  feet  each  way  along  the  supposed 
course  of  the  lode.  This  gives  the  center  line  length- 
wise of  the  claim,  and  from  each  end  of  this  center 
line  measure  150  feet  on  each  side  for  the  end  lines 
on  the  same  course  as  the  line  between  the  center 

*  Seventy-five  feet  in  Clear  Creek,  Gilpin,  Boulder  and 
Summit  Counties,  Colorado,  and  150  feet  in  all  other  coun- 
ties in  that  State ;  1 50  feet  in  North  and  South  Dakota ; 
and  300  feet  in  other  States  and  Territories,  unless  lim- 
ited to  less  by  district  rule.  This  75  feet,  150  feet  or  300 
feet  is  of  course  one-half  the  width  of  a  150,  300  or  600 
foot  wide  claim.  » 


DISCOVERY  AND  LOCATION.  51 

stakes,  which  will  give  the  four  points  at  which  to 
set  the  corner  stakes,  and  will  also  make  the  end 
lines  parallel  as  required  by  law. 

Measuring  the  length  of  the  claim  along  its  cen- 
ter, with  an  offset  of  150  feet  at  right  angles  in  each 
direction  at  discovery  shaft  and  at  each  end,  brings 
the  same  result  as  if  both  the  side  lines  as  well  as 
the  end  lines  were  measured. 

Diagram  of  Lines  to  be  Run. 

The  dotted  lines  on  the  following  diagram  show 
the  four  lines  to  be  measured  on  a  prospector's  sur- 
vey, and  the  six  points  at  which  stakes  are  to  be  set: 

Corner  Center  Stake  Corner 


\Df'scovery  'Shaft 
Corner  Center  Stake  Corner 

Staking  and  Marks  on  Stakes. 

At  each  of  the  four  real  corners  of  the  claim, 
at  the  center  of  each  side  line  and  at  each  extra 
angle  made  in  the  claim,  set  a  substantial  stake, 
blaze  it  and  mark  the  blazed  part  with  its  proper 
number  and  the  name  of  the  lode.  In  addition  to  the 
number  write  "North  center  side  stake,"  "South  cen- 
ter side  stake,"  "N.  E.  Cor.,"  etc.,  as  the  case  may  be, 
and  put  the  name  of  the  lode  on  each  stake. 

The  Statute  of  Colorado  requires  each  stake  to 
be  hewed  or  marked  on  the  side  or  sides  in  toward 
the  claim.  This  would  be  satisfied  by  blazing  alone, 
but  it  is  customary  to  shave  the  in  side  (which  in- 
dicates the  relation  of  the  stake  to  the  claim)  and 
mark  with  pencil  the  name  of  the  lode,  number  of 
corner,  etc.,  as  above  directed. 

Marking  three  out  of  four  corners  was  held  suf- 
ficient in  a  Utah  case. — Warnock  v.  DeWitt,  40  Pac. 
205.  Review  of  citations  on  the  point  of  sufficient 
staking. — Howeth  v.  Sullenger,  45  Pac.  841. 


52  DISCOVERY  AND  LOCATION. 

Numbering  the  Corners. 

Any  corner  may  be  called  No.  1;  call  the  other 
corner  on  the  same  end  line  No.  2,  and  proceed  thus 
continuously  around  the  claim,  setting  an  additional 
corner  post  at  each  angle  of  the  claim.  Even  in  of- 
ficial surveys  there  is  no  uniform  rule  as  to  which 
corner  is  numbered  one. 

Position  of  Center  Stakes. 

In  the  case  of  the  Hardin  Lode,  the  claim  was 
surveyed  600  feet  in  one  direction  and  900  feet  in  the 
opposite  direction  from  center  of  discovery.  The 
center  stakes  were  placed  opposite  discovery,  which 
left  them  each  150  feet  from  their  proper  places. 
The  Supreme  Court  held  that  they  could  not  be  con- 
sidered as  substantially  in  the  center;  but  on  the 
other  hand,  they  held  that  if  the  corner  posts  were 
properly  on  the  ground,  the  absence  of  center  stakes 
did  not  invalidate  the  location. — Pollard  v.  Shively, 
2  M.  R.  229. 

Tying  the  Claim. 

In  addition  to  staking  the  boundaries  it  is  essen- 
tial to  have  sufficient  ties  by  which  to  identify  the 
claim  in  the  location  certificate.  The  use  of  the 
bearings  to  mountain  peaks  used  by  surveyors  with 
instruments  is  impracticable  in  this  kind  of  survey 
— take  instead  of  such  monuments,  marks  carved  on 
prominent  boulders  or  prominent  blazed  trees,  neigh- 
boring shafts  or  shaft-houses.  Anything  which  is  a 
"natural  object"  or  "permanent  monument"  (and 
reasonably  substantial  and  prominent)  is  sufficient 
to  identify  the  claim.  Prom  the  center  of  the  dis- 
covery and  from  at  least  one  of  the  corner  posts, 
take  careful  measurements  of  the  exact  distance  to 
such  monuments  (the  most  prominent  possible  un- 
der the  circumstances)  as  have  been  selected  to  use 
in  the  location  certificate  to  tie,  describe  or  identify 
the  claim. 


DISCOVERY  AND  LOCATION.  53 

No  specific  number  of  ties  are  required,  but  at 
least  two  different  monuments  should  be  selected  for 
such  purpose. 

What  Are  Sufficient  Ties. 

A  tree  blazed  or  otherwise  referred  to  by  some 
peculiarity  as  in  Quimby  v.,  Boyd,  8  Colo.  194,  "a 
double  spruce  tree,"  has  been  declared  a  sufficient 
monument.  In  certain  places  trees  might  be  the 
only  objects  available,  and  have  been  considered  good 
boundary  monuments  or  witnesses  from  time  im- 
memorial. A  neighboring  shaft  or  a  prominent  post 
firmly  fixed  in  the  ground  is  a  good  monument. — 
Jupiter  Co.  v.  Bodie  Co.  4  M.  R.  412.  Mountain  peaks 
are  good  calls. — Craig  v.  Thompson,  10  Colo.  517. 

Calling  for  Adjoining  or  Neighboring  Claims. 

The  earlier  decisions  were  to  the  effect  that  a 
call  for  another  mine  or  claim  was  not  a  call  for  a 
permanent  monument,  and  that  a  location  certificate 
having  such  a  call  and  no  other,  or  no  other  suf- 
ficiently specific,  was  not  a  compliance  with  R.  S. 
Sec.  2324.— Baxter  Co.  v.  Patterson,  3  Pac.  741; 
Drummond  v.  Long,  1.1  M.  R.  510;  Gilpin  Co.  v.  Drake. 
8  Colo.  586.  As  late  as  1896  an  extreme  ruling  to 
the  s^rne  effect  was  made  in  an  Idaho  case,  Brown 
v.  Levan,  46  Pac.  661;  overruled  in  1902  by  Morrison 
v.  Regan,  67  Pac.  955.  There  the  first  call  was  "about 
one-half  mile  from  the  Hurt  Mines,  the  direction  be- 
ing Southwest."  That  call  of  itself  was  indefinite 
enough,  but  the  paper  also  called  for  three  adjoiners. 
The  Statute  of  Idaho  (at  that  time)  required  adjoin- 
ing claims  to  be  named.  The  Court  held  that  such 
call  for  adjoiners  did  not  aid  the  tie  to  the  Hurt 
group  of  mines.  If  the  call  for  the  adjoiners  of  it- 
self made  a  good  description  we  can  not  see  why  such 
call  should  be  rejected  as  not  aiding  the  defective  tie 
to  the  Hurt  mines,  from  the  mere  fact  that  to  call  for 
adjoiners  was  a  Statutory  requirement  of  the  location 
certificate. 


54  DISCOVERY  AND  LOCATION. 

All  the  later  cases  hold  that  a  call  for  even  a 
single  claim,  either  as  an  adjoiner  or  near  neighbor, 
makes  a  sufficient  description.  That  a  mine  or  min- 
ing claim  may  be  a  permanent  monument  and  that  if 
not  so  developed  or  known  as  to  be  a  permanent  mon- 
ument the  proof  of  such  fact  is  upon  the  objecting 
party. — Book  v.  Justice  Co.  58  Fed.  106;  Riste  v.  Mor- 
ton, 49  Pac.  656;  Kinney  v.  Fleming,  56  Pac.  723; 
Seidler  v.  Lafave,  20  Pac.  78.9,  overruling  the  Baxter 
case,  supra;  Shattuclc  v.  Costello,  68  Pac.  529. 

A  notice  calling  for  adjoiners  on  all  four  sides 
was  held  valid,  although  the  claim  was  described  as 
in  a  quarter  section  different  from  the  true  one.— 
Duryea  v.  Boucher,  7  Pac.  421. 

Description  by  Metes  and  Courses  Not  Essential. 
A  record  based  on  a  location  made  as  above  di- 
rected, the  corners  and  side  stakes  being  marked  and 
the  notice  set,  which  so  identifies  the  situation  of  the 
claim  (by  reference  to  natural  objects  or  permanent 
monuments  tied  to  its  discovery  shaft  or  corners) 
that  it  may  be  readily  found  by  a  stranger  examining 
the  record,  and  for  courses  calls  for  some  certain  gen- 
eral direction  and  otherwise  complies  with  all  the 
statutory  requirements  herein  stated — is  as  valid  as 
one  which  calls  for  degrees,  minutes,  metes-  and 
bounds. 

The  Terms  Southerly,  Northerly,  Etc.,  as  used  by 
miners  in  location  certificates  and  notices,  are 
not  to  be  read  as  due  south  or  due  north  so  as  to 
defeat  the  location. — Smith  v.  Newell,  86  Fed.  56; 
Glass  v.  Basin  Co.  55  Pac.  MJfi.  See  p.  38. 

Precautions  at  Time  of  Location. 

The  side  and  corner  stakes  being  properly  set, 
the  location  stake  fixed  and  properly  inscribed,  and 
the  distance  to  ties  or  monuments  measured,  take 
the  precaution  at  the  time  to  measure  the  depth  of 
the  discovery  shaft  to  see  that  the  full  ten  feet  in 
depth  exist,  recollecting  that  the  collar  is  apt  to  cave 


DISCOVERY  AND  LOCATION.  55 

in  and  the  bottom  to  fill  up  with  soil,  inviting  an 
attack  on  the  location  for  want  of  legal  discovery. 
Note  the  exact  result  of  this  measurement  on  the 
location  stake. 

Size  of  Stakes,  Etc. 

The  statute  says  that  the  posts  shall  be  sub- 
stantial and  shall  be  sunk  in  the  ground.  The  Land 
Office  Regulations,  which  are  more  specific,  require 
them  to  be  not  less  than  four  inches  in  diameter, 
three  feet  long,  and  set  eighteen  inches  in  the  ground; 
if  of  stone,  twenty-four  inches  long. — Rule  143. 

It  is  not  essential  to  put  the  name  of  the  claim 
on  the  boundary  stakes. — Smith  v.  Newell,  86  Fed.  56. 

Trees,  Stumps  and  Boulders  As  Corner  Posts. 

In  Pollard  v.  Shively,  2  M.  R.  229,  the  Court  held 
that  a  stump  properly  marked  might  be  adopted  as  a 
boundary  stake,  and  there  is  no  doubt  that  a  stone 
post  literally  complies  with  the  law.  And  the  call- 
ing for  trees  as  corners,  when  in  fact  stakes  stood  for 
corners,  has  been  treated  as  immaterial  error,  when 
there  were  other  calls  by  which  to  fix  the  claim. — 
Upton  v.  Larkin,  15  M.  R.  404;  Hanson  v.  Fletcher,  37 
Pac.  480.  The  L.  O.  Regulations  also  recognize  both 
stones  and  rock  in  place. — Rule  143. 

Cutting  a  letter  into  solid  rock  held  not  equiv- 
alent to  a  stake. — Taylor  v.  Parenteau,  48  Pac.  505. 

Where  Stakes  Can  Not  Be  Set. 

Where  a  stake  can  not  be  driven  on  account  of 
bed-rock,  it  should  be  fixed  in  a  pile  of  stones,  and  in 
official  surveys  this  marking  is  required  in  all  cases. 
Where  a  stake  can  not  be  set  on  account  of  precipitous 
ground,  the  witness  stake  should  be  set  as  near  as 
possible,  and  on  it  should  be  expressed  the  course  and 
distance  to  the  corner  or  center  stake,  for  which  it  is 
a  substitute.  The  provisions  of  the  Colorado  Stat- 
utes on  this  point  (p.  27)  can  not  be  invoked  where 
the  setting  of  the  stakes  is  merely  difficult  or  incon- 
venient.— Croesus  Co.  v.  Colorado  Co.  19  Fed.  78. 


56  DISCOVERY  AND  LOCATION. 

Where  the  stakes  of  one  end  of  a  claim  were  not  set, 
merely  because  the  point  was  difficult  of  access,  it 
was  held  that  the  claim  was  not  valid. — Id.  A  like 
ruling  was  made  where  a  corner  fell  upon  a  railroad 
embankment. — Seals  v.  Gone,  62  Pac.  949.  And  as  a 
matter  of  course,  the  failure  to  set  them  through 
inadvertence  or  neglect  would  be  fatal.— Patterson  v. 
Tar-bell,  37  Pac.  76. 

Variation  Between  Courses  and  Monuments. 

As  the  result  of  carelessness,  accident  or  defective 
instruments,  variations  between  the  courses  called  for 
in  the  record  and  the  monuments  on  the  ground,  are 
matters  of  constant  occurrence.  The  general  rule  in 
such  cases  is  that  the  monuments  control. — Cullacott 
v.  Cash  Co.  8  Colo.  179;  15  M.  R.  392;  Book  v.  Justice 
Co.  58  Fed.  106;  Stonewall  Co.  v.  Peyton,  23  So.  440. 

But  it  was  held  in  the  Hardin  Lode  case,  2  M.  R. 
229,  that  the  monuments  would  not  control  where 
they  varied  from  the  kind  of  monuments  called  for 
in  the  record— that  a  call  for  a  "post"  was  not  satis- 
fied by  a  "stump" — and  further,  that  in  the  case  of 
possessory  claims  the  monuments  must  be  kept  up 
so  as  to  be  found  upon  the  ground — and  that  other- 
wise the  calls  in  the  location  certificate  must  control, 
observing  that  this  ruling  was  essential  to  prevent 
the  danger  of  swinging  locations. 

Maintaining  Stakes. 

Once  properly  set  stakes  have  performed  their 
original  office  and  their  subsequent  removal  or  ob- 
literation not  done  by  the  act  of  the  party  does  not 
vitiate  the  claim. — Book  v.  Justice  Co.  58  Fed.  107; 
McEvoy  v.  Hyman,  15  M.  R.  397;  Smith  v.  Newell, 
86  Fed.  56. 

But  where  not  maintained,  a  misdescription  in 
the  record,  otherwise  immaterial,  may  become  serious, 
if  not  fatal,  because  to  correct  courses  or  other  errors 
by  monuments  the  monuments  must,  in  general,  be 
found  upon  the  ground. 


DISCOVERY  AND  LOCATION  57 

A  Location  May  Be  Made  By  An  Agent,  and  in 
such  case  written  authority  is  not  essential. — 
Hurley  v.  Ennis,  12  M.  R.  360;  Schultz  v.  Keeler,  13 
Pac.  481;  Rush  v.  French,  25  Pac.  816;  Dunlap  v.  Pat- 
tison,  42  Pac.  504.  In  such  case  the  location  certifi- 
cate should  be  signed  by  writing  the  name  of  the 
principal,  followed  by  that  of  the  agent — "Barton  A. 
Hopkins  by  J.  Mason  Hall,  agent."  In  writing  names 
on  stakes  and  notices  this  is  unnecessary — write  only 
the  name  of  the  principal — because  such  signing  is  not: 
a  signature  and  it  is  immaterial  by  whom  done  so 
that  the  act  is  recognized  or  adopted  by  the  party 
whose  name  is  used.  Even  in  subscribing  the  loca- 
tion certificate  the  names  are  often  written  by  the 
party  who  makes  out  the  body  of  .the  paper  (without 
any  mention  of  agency),  and  we  do  not  apprehend 
that  this  invalidates  the  document.  Such  writings 
are  obviously  of  a  class  different  from  deeds,  notes? 
etc.,  where  a  name  can  be  legally  subscribed  as  a  rule 
only  by  the  party  himself  or  by  one  fully  authorized 
so  to  do  by  power  of  attorney  or  other  formal  author- 
ization.— Morton  v.  Solambo  Co.  4  M.  R.  463;  Gore  v. 
McBrayer,  1  M.  R.  645:  Morrison  v.  Regan,  67  Pac. 
955. 

A  Corporation  May  Locate. 

This  has  been  expressly  decided  in  the  cases  of 
McKinley  v.  Wheeler,  130  U.  8.  630,  and  Thomas  'v. 
Chisholm,  13  Colo.  105.  It  is  required  only  that  it  be 
chartered  under  the  laws  of  some  federal  State  or 
Territory.  As  to  the  citizenship  of  its  stockholders, 
see  Doe  v.  Waterloo  Co.  70  Fed.  463. 

Minors. 

The  case  of  Thompson  v.  Spray,  72  Gal.  531,  holds 
that  a  minor  child  may  make  a  valid  mining  loca- 
tion. 

Location  Prevented  by  Colluding  Co-Tenant. 

If  the  staking  and  record  are  in  fact  not  made 
the  claim  never  becomes  perfected,  although  the  rea- 


58  DISCOVERY  AND  LOCATION. 

son  be  that  a  co-owner  violated  his  duty  by  colluding 
with  third  parties  and  allowing  them  to  take  up  the 
ground.  The  sole  remedy  of  the  injured  party  is  by 
appropriate  action  against  his  co-owner,  based  on  his 
fraud. — Lockhart  v.  Wills,  54  Pac.  336. 
Irregular  Locations — Fractions. 

•  The  contemplation  of  the  law  is  that  a  lode  claim 
should  be  substantially  a  parallelogram. — Del  Monte 
case,  171  U.  8.  84.  But  it  seems  that  with  the  limita- 
tion that  the  length  may  not  exceed  1,500  feet^nor  the 
width  600  feet  a  location  may  be  made  in  any  con- 
venient shape,  the  only  loss  from  such  form  of  survey 
being  that  no  extralateral  rights  can  be  claimed 
for  a  Survey  which  has  not  parallel  end  lines.  Sur- 
veys in  the  shape  of  a  horse  shoe  and  in  the  shape 
of  a  triangle  respectively  were  considered  in  the  Stone 
Lode  case,  15  M.  R.  641,  and  in  Montana  Co.  v.  Clark, 
16  M.  R.  80.  In  the  North  Star  case,  83  Fed.  658,  both 
patents  were  of  no  conformable  shape,  but  each  of 
them  had  issued  on  a  consolidation  of  claims  located 
before  1872.  "There  is  liberty  of  surface  form  under 
the  Act  of  1872."— Walrath  v.  Champion  Co.  171  U.  8. 
312. 

Where  a  fraction  is  found  lying  between  older 
Surveys  it  may  be  staked  so  as  to  make  a  claim  in 
the  exact  shape  of  the  vacant  ground  or,  it  would 
seem,  under  the  authority  of  the  Del  Monte  case, 
supra,  the  claimant  can  set  his  corners  on  the  older 
claims  and  thus  secure  parallel  end  lines  and  the 
extralateral  rights  which  would  be  denied  if  he  con- 
fined himself  to  the  lines  proper  of  the  fraction.  A 
wedge  shaped  fraction  is  valid  for  what  clear  ground 
it  covers. — Crown  Point  Co.  v.  Buck,  97  Fed.  462. 
Locating  Across  the  Strike. 

The  loss  of  extralateral  rights  by  such  location 
is  considered  under  APEX.  In  Walsh  v.  Mueller,  40 
Pac.  292,  location  had  been  made,  fraudulently,  as 
was  alleged  in  the  complaint,  across  instead  of  along 
the  strike.  We  can  not  see  how  fraud  could  be 


STATUTORY  REQUIREMENTS.  59 

predicated  upon  such  fact  standing  alone.  It  simply 
loses  the  right  to  follow  on  the  dip  and  the  surface 
beyond  the  proper  distance  from  center  of  vein  is  open 
to  hostile  location,  as  explained  by  diagram  on  p.  25. 

Sunday. 

In  Union  Co.  v.  Leitch,  64  Pac.  829,  the  first  act 
of  location  was  done  on  a  Sunday  and  in  the  subse- 
quent contest  no  point  was  made  on  this  fact. 


TABLE  OF  STATUTORY  REQUIREMENTS. 

Indispensable  Federal  Requirements. 

Whether  required  or  not  by  State  Statute  or  Dis- 
trict Rules,  the  Federal  Statute  requires  that  the  lo- 
cation must  be  distinctly  marked  on  the  ground,  so 
that  its  boundaries  can  be  readily  traced,  and  the 
location  certificate  must  contain  (1)  the  name  or 
names  of  the  locators,  (2)  the  date  of  the  location 
and  (3)  such  a  description  of  the  claim  or  claims 
located  by  reference  to  some  natural  object  or  perma- 
nent monument  as  will  identify  the  claim. — R.  8. 
Sec.  2324. 

Taking  Colorado  as  a  basis  for  the  manner  of 
locating  and  recording  lode  claims,  the  difference  in 
the  regulations  of  the  other  States  and  Territories 
of  the  Pacific  slope  is  noted  in  each  paragraph  num- 
bered to  correspond  with  the  Colorado  table  below: 

Before  filing  his  location  certificate  the  discov- 
erer is  required  by  Statute  in 

Colorado. 

1.  To  place  at  the  point  of  discovery,  on  the  sur- 
face, a  notice  containing  the  name  of  the  lode,  the 
name  of  the  locator  and  the  date  of  the  discovery. 

2.  Within  sixty  days  from  the  discovery,  to  sink 
a  discovery  shaft  ten  feet  deep   showing  a  well  de- 
fined crevice. 


60  STATUTORY  REQUIREMENTS. 

3.  To  mark  the  surface  boundaries  by  six  posts, 
one  at  each  corner   and  one  at  the  center   of  each 
side  line  hewed  or  marked  on  the  side  or  sides  in 
towards  the  claim. 

4.  The  disclosure  of  the   lode   in  an   open   cut, 
cross-cut   or   tunnel   suffices   instead   of   the   ten-foot 
shaft. 

5.  Within  three  months  from  date  of  discovery 
he   must  file  a  location  certificate  with  the  County 
Recorder   giving  a   proper  description   of   the   claim 
and  containing  also  the  name  of  the  lode,  the  name 
of  the  locator,  the  date  of  the  location,  the  number 
of  feet  in  length  on  each  side  of  the  center  of  the 
discovery  shaft  and  the  general  course  of  the  lode. 

Alaska. 

On  June  6,  1900,  Congress  passed  an  Act  purport- 
ing to  be  a  full  code  of  Statute  Law  for  this  Terri- 
tory.—^ 8t.  L.  321. 

It  leaves  the  status  of  mining  titles  the  same  as 
in  those  States  which  have  but  few  statutory  regu- 
lations. 

It  provides  for  three  Recording  Divisions  and 
these  Divisions  are  to  be  subdivided  into  Recording 
Districts,  for  each  of  which  is  provided  a  recorder. 

The  Clerk  of  the  Court  is  ex  officio  recorder  of 
all  that  part  of  any  Recording  Division  not  set 
off  into  recording  districts. 

Until  the  above  District  Recorders  are  appointed 
the  miners  may  appoint  a  recorder  of  any  organ- 
ized local  mining  district. — Sec.  16. 

There  is  obvious  confusion  in  these  provisions, 
but  it  seems  evident  that  the  office  of  the  recorder 
of  the  recording  district  is  the  place  where  records 
are  ultimately  to  be  filed. 

The  Act  allows  ninety  days  after  discovery  for 
the  record,  and  while  by  its  general  terms  necessarily 
requiring  a  discovery  and  such  marking  of  bounds 
and  description  as  are  everywhere  required  by  the 


STATUTORY  REQUIREMENTS.  61 

terms  of  R.  S.  Sec.  2324,  ante  p.  27,  it  does  not  re- 
quire a  discovery  shaft  or  any  other  special  condi- 
tion. Sections  15  and  26  of  the  act  are  printed  under 
the  heading  ALASKA. 

Arizona. 

1.  Erect  at  point  of  discovery  stone  monument 
three  feet  high,  or  a  post  four  feet  above  ground,  on 
which,  post  notice  containing  same  as  Colorado,  add- 
ing  length   and    width,    distance   from   discovery   to 
each  end,  the  general  course  and  the  locality  of  the 
claim   by  reference  to  natural  object  or  permanent 
monument. 

2.  Within   ninety   days   from    time   of   location, 
sink  discovery  shaft  ten  feet  deep  showing  a  lode, 
deposit  or  mineral  in  place. 

3.  Within  ninety  days,  mark  boundaries  by  six 
posts  or  stone  monuments,  same  as  Colorado;   posts 
must  be  four  feet  above  ground;    stone  monuments 
three  feet  high. 

4.  Same  as  Colorado;   amount  of  work  must  be 
equal  to  a  shaft  ten  feet  deep  and  four  feet  wide  by 
six  feet  long. 

5.  Within   ninety   days   from   time   of   location, 
record  with  the  County  Recorder  a  copy  of  the  lo- 
cation notice  posted. 

California. 

No  statutory  regulations.  A  Mining  Code  was 
enacted  in  1897,  but  repealed  in  1899.  The  manner 
of  staking  and  other  incidents  of  location  are  con- 
trolled by  district  rules,  and  R.  S.  Sec.  2324.  See  p.  21. 
These  rules  usually  prescribe  time  for  filing  location 
certificate,  and  by  Sees.  1159  and  1169,  Civil  Code, 
1901,  a  record  with  the  County  Recorder  seems  to  be 
required. 

Idaho. 

1.  At  time  of  discovery  erect  monument  at  place 
of  discovery  showing  a  notice  same  as  Colorado,  add- 


62  STATUTORY  REQUIREMENTS. 

ing  distance  claimed  along  vein  each  way  from  monu- 
ment. 

2.  Within  60  days  "after  such  location"  sink  dis- 
covery shaft  10  feet  deep  and  of  not  less  than   16 
square  feet  area. 

3.  Within  10  days  after  discovery  mark  bound- 
aries by  monuments  at  each  corner  and  at  each  angle 
in  side  lin^s,  marked  with  name  of  claim  and  cor- 
ner or  angle  it  represents.     Monuments  must  be  4 
feet  above  ground;   posts  or  trees  must  be  4  inches 
square  or  diameter,  and  hewn  and  marked  on  side 
facing  discovery. 

4.  Any  excavation  which  cuts  the  vein  10  feet 
deep  and  measures  160  cubic  feet  in  extent  shall  be 
sufficient. 

5.  Within  90  days  after  location  file  with  County 
Recorder  or  Deputy  Recorder  of  Mining  District  a 
substantial  copy  of  "notice  of  location"   (see  No.  6) 
with  affidavit  of  one  of  locators  attached,  that  he  is 
a  citizen  of  the  United  States  or  declared  his  inten- 
tions; that  he  is  acquainted  with  the  ground  claimed 
and  that  no  part  has  been. located,  or  if  located,  that 
it  has  been  abandoned  by  failure  to  perform  labor, 
and  that  he  has  done  10  feet  of  new  work. 

6.  At  the  time  of  marking  boundaries  post  at 
discovery  monument  a  notice  of  location  containing 
same  as  No.  5,  Colorado,  and  adding  distance  on  each 
side  of  middle  of  vein,  distance  and  direction  from 
discovery  monument  to  natural  object  or  permanent 
monument  and  the  name  of  Mining  District,  County 
and  State  where  claim  is  located. 

Montana. 

1.  Same   as  Colorado,   adding  date   of  location, 
the  number  of  feet  in  width  on  each  side  of  vein  and 
general  course  of  lode. 

2.  Sixty  days  from  date  of  posting  sink  shaft  10 
feet   deep   showing  well   defined   crevice  or  valuable 
deposit. 


STATUTORY  REQUIREMENTS.  63 

3.  Thirty  days  to  mark  boundaries  by  tree,  rock 
in  place,  post  or  stone  at  each  corner  or  angle  of 
claim,   and   marked  to   designate  the   corner.     Posts 
must  be  4  inches  square  by  4  feet  6  inches  long,  one 
foot  in  ground  and  mound  of  earth  or  stone  4  feet 
in  diameter  and  2  feet  high  placed  around  the  post. 
If  a  stone,  not  a  rock  in  place,  is  used,  it  must  be  6 
inches  square  by  18  inches  long,   set  two-thirds  its 
length  in  the  ground. 

4.  Same  as  Colorado. 

5.  Within  60  days  from  posting  notice  file  with 
Clerk  of  County  a  declaratory  statement  containing 
same  as  Colorado  and  adding  the  width  on  each  side 
of  vein,  dimensions  and  location  of  discovery  shaft 
and  location  and  description  of  each  corner  with  the 
markings  thereon. 

This  statement  must  be  verified  by  the  locators, 
showing  that  the  location  has  been  made  in  good 
faith  and  that  the  matters  therein  stated  are  true. 

Nevada. 

1.  Same  as   Colorado,   adding  length  each  way 
from  discovery,  width  on  each  side  of  vein,  and  gen- 
eral course  of  lode. 

2.  Before   expiration   of   90    days   from   posting 
sink  shaft  10  feet  deep  to  show  a  lode  or  deposit  of 
mineral  in  place. 

3.  Within  90  days  mark  boundaries  by  a  tree 
or  rock  in  place  or  setting  a  post  or  stone  same  as 
Colorado,  and  marked  to  designate  the  corner.    Posts 
must  be  4  inches  square  by  4  feet  6  inches  long,  set 
one  foot  in  ground  with  mound  of  stone  or  earth, 
4  feet  in  diameter  and  2  feet  high.     If  a  stone,  not 
a  rock  in  place,  is  used,  it  must  be  6  inches  square 
by  18   inches  long,   set  two-thirds  its   length  in  the 
ground. 

4.  Same  as  Colorado.    Amount  of  work  must  be 
equal  to  a  shaft  10  feet  deep,  4  feet  wide  and  6  feet 
long. 


64  STATUTORY  REQUIREMENTS. 

5.  Within  90  days  from  date  of  posting  record 
with  Mining  District  Recorder  and  County  Recorder, 
a  location  certificate  containing  same  as  Colorado, 
and  adding  width  on  each  side  of  vein,  dimensions 
and  location  of  discovery  shaft,  and  location  and  de- 
scription of  each  corner,  with  the  markings  thereon. 

Recording  with  county  recorder  is  required 
whether  there  is  a  district  recorder  or  not. 

New  Mexico. 

1.  Post  in  some  conspicuous  place  on  location  a 
notice  in   writing  stating  thereon  the  name   of   the 
locator,  his  intention  to  locate  the  claim,  and  a  de- 
scription  of   the   claim,   by   reference   to   permanent 
monument. 

2.  Within  90  days  from  date  of  taking  posses- 
sion sink  a  discovery  shaft  to  a  depth  of  at  least  10 
feet,   exposing  mineral  in  place. 

3.  Mark  surface  boundaries  by  four  substantial 
posts  or  monuments  set  at  each  corner  of  the  claim 
so  as   to   distinctly  mark  the  claim   on   the   ground 
so  that  its  boundaries  can  be  readily  traced. 

4.  Same  as  Colorado. 

5.  Within   three    months    after    posting    notice 
record  a  copy   in  the  office  of  the  Recorder   of  the 
County. 

North  Dakota. 

1.  Same   as   Colorado,   adding    length    on   each 
side  of  discovery  and  width  on  each  side  of  lode. 

2.  Within    60   days   from   uncovering  lode   sink 
discovery  shaft  sufficient  depth  to  show  well  defined 
mineral  vein  or  lode. 

3.  Same  as  Colorado,  adding  two  posts,  one  at 
center  of  each  end  line,  marking  posts  with  name  of 
lode,  and  the  corner,  end  or  side  of  claim  they  re- 
spectively represent. 

4.  Same  as  Colorado. 

5.  Within  60  days  from  date  of  discovery  record 
in  office  of  Register  of  Deeds  a  location   certificate 


STATUTORY  REQUIREMENTS.  65 

containing  same  as  Colorado,  adding  width  claimed 
on  each  side  of  vein. 

Oregon. 

1.  Same  as   Colorado,  adding  length   each   way 
from  discovery,  width  on  each  side  of  lode,  general 
course   of  lode,   and   reference   to   natural   object   or 
permanent  monument. 

2.  Within   60   days   from   date   of  posting,   sink 
discovery  shaft  10  feet  to  show  a  lode  or  vein  of  min- 
eral deposit  in  place. 

3.  Within   30   days  after  posting,   mark   bound- 
aries by  six  posts  or  mounds  of  earth  and  stone,  one 
at   each   corner   and   one   at   center   ends    of   claim; 
posts  3  feet  above  ground,  4  inches  square  or  diame- 
ter;  mounds  2  feet  high. 

4.  Same  as  Colorado,  but  open  cut  must  be  at 
least  6  feet  deep,  4  feet  wide  and  10  feet  in  length 
along  the  lode. 

5.  Within  60  days  after  date  of  posting,  record 
with  Recorder  of  conveyances,  if  there  be  one,  other- 
wise  with   Clerk   of   County,   a   copy   of    the    notice 
posted,   attaching  thereto   an   affidavit   showing   that 
required  location  work  was  performed. 

NOTE. — By  Sec.  3829,  Hill's  A.  L.,  only  one  claim,  by 
location,  may  be  held  upon  each  lead  or  vein,  by  the  same 
person ;  the  discoverer  of  any  new  lead  or  vein,  not  pre- 
viously located  upon,  is  allowed  one  additional  claim. 

South  Dakota. 

1.  Same    as    Colorado,    adding   length    on    each 
side  of  discovery  and  width  on  each  side  of  lode. 

2.  Before    filing   location   certificate   sink   shaft 
10  feet  deep  to  show  a  well  defined  mineral  vein  or 
lode. 

3.  Same  as  Colorado,  adding  two  posts,  one  at 
center  of  each  end  line,  marking  posts  with  name  of 
lode  and  the  corner,  end  or  side  of  claim  they  respec- 
tively represent. 

4.  Same  as  Colorado. 


66  STATUTORY  REQUIREMENTS. 

5.  Within  60  days  from  date  of  discovery,  record 
in  office  of  Register  of  Deeds,  a  location  certificate 
containing  same  as  Colorado,  adding  width  claimed 
on  each  side  of  vein. 

On  filing  the  location  certificate,  the  Register 
furnishes  the  locator  with  a  certificate,  and  it,  or  a 
copy,  must  be  posted  on  the  same  post  or  tree  where 
the  original  notice  is  posted,  and  in  a  conspicuous 
place.  If  not  posted  within  90  days  from  date  of 
original  notice  the  claim  is  deemed  abandoned. 

Utah. 

1.  At  time  of  making  discovery  erect  a  monu- 
ment and  place  thereon  a  notice  containing  same  as 
Colorado,  and  adding  length  each  way  from  discov- 
ery, width  -on  each  side  of  vein,  general  course  of 
lode  and  description  with  reference  to  natural  object 
or  permanent  monument. 

2.  Regulated  by  District  Rules. 

3.  Claims    must   be    distinctly    marked    on    the 
ground  so  that  the  boundaries  can  be  readily  traced. 
Details  of  marking  left  to  District  Rules. 

4.  Regulated  by  District  Rules. 

5.  Within  30  days  from  date  of  posting  the  loca- 
tion notice,   file  for   record  in  office  of  County  Re- 
corder,    if     claim   be    situate    without    and   beyond 
an  original  mining  district,  a  substantial  copy  of  the 
notice  of  location. 

NOTE. — The  Acts  of  1899,  page  26,  allow  districts  to 
be  organized,  but  provide  that  the  nearest  boundary  line  of 
district  shall  not  be  within  10  miles  of  the  office  of  any 
County  Recorder. 

Also,  that  where  location  certificate  is  filed  with  Dis- 
trict Mining  Recorder,  it  must  be  filed  in  duplicate,  which 
duplicate  the  District  Mining  Recorder  sends  to  the  County 
Recorder  to  be  by  him  recorded. 

Washington. 

1.  Post  at  the  discovery,  at  the  time  of  discov- 
ery, a  notice  containing  same  as  Colorado. 

2.  Within  90  days  from  date  of  discovery  sink 
shaft  10  feet  deep.     This  requirement  of  shaft  does 


RECORD.  67 

not  apply  to  any  mining  claim  located  west  of  the 
summit  of  the  Cascade  mountains. 

3.  Within  90  days  mark  boundaries  by  substan- 
tial posts  or  stone  monuments,  bearing  name  of  lode 
and  date  of  location,  at  each  corner  of  claim.     Posts 
and  monuments  not  less  than  3  feet  high;  posts  not 
less  than  4  inches  in  diameter.     Brush  must  be  cut 
away  and  trees  must  be  blazed  along  lines  of  claim. 

4.  Same  as  Colorado,  except  that  cross-cuts  are 
not  mentioned. 

5.  Within  90   days  from  date  of  discovery,   re- 
cord in  office  of  the  Auditor  of  County,  a  notice  con- 
taining same  as  Colorado  (except  no  specific  require- 
ment that  it  contain  name,  of  lode). 

Wyoming. 

1.  Same  as  Colorado. 

2.  Within  60  days  from  date  of  discovery  sink  a 
discovery  shaft  10  feet  deep. 

3.  Mark  the  surface  by  six  substantial   monu- 
ments of  stone  or  posts,  placed  and  marked  same  as 
Colorado. 

4.  Same  as  Colorado. 

5.  Within  60  days' from  date  of  discovery  record 
with  County  Clerk  a  location  certificate  containing 
same  as  Colorado,  adding  width  on  each  side  of  dis- 
covery shaft,   and   describing  claim,   if  on  surveyed 
land,  by  such  reference  to  section  or  quarter  section 
corners,  as  shall  identify  the  claim  beyond  question. 


RECORD. 


Essentials  of  Location  Certificate. 

R.  S.  Sec.  2324. —  *  *  *  All  records  of  mining- 
claims  hereafter  made  shall  contain  the  name  or  names  of 
the  locators,  the  date  of  the  location,  and  such  a  descrip- 
tion of  the  claim  or  claims  located  by  reference  to  some 
natural  object  or  permanent  monument  as  will  identify  the 
claim.  *  *  *  — Sec.  5f  A.  C.  May  1Q,  1872. 


68  RECORD. 

Colorado  Statute — Time  to  File. 

M.  A.  S.  Sec.  3150. — The  discoverer  of  a  lode  shall, 
within  three  months  from  the  date  of  discovery,  record  his 
claim  in  the  office  of  the  recorder  of  the  county  in  which 
such  lode  is  situated,  by  a  location  certificate  which  shall 
contain  : 

First — The  name  of  the   lode. 

Second — The  name  of  the  locator. 

Third — The  date  of  location. 

Fourth — The  number  of  feet  in  length  claimed  on  each 
side  of  the  center  of  discovery  shaft. 

Fifth — The  general  course  of  the  lode  as  near  as  may 
be. — Feb.  1%,  181$. 

Indefinite  Record  Void. 

M.  A.  S.  Sec.  3151. — Any  location  certificate  of  a  lode 
claim  which  shall  not  contain  the  name  of  the  lode,  the  name 
of  the  locator,  the  date  of  location,  the  number  of  lineal 
feet  claimed  on  each  side  of  the  discovery  shaft,  the  gen- 
eral course  of  the  lode,  and  such  description  as  shall  iden- 
tify the  claim  with  reasonable  certainty,  shall  be  void. — Id. 

Separate  Record  of  Each  Claim. 

M.  A.  S.  Sec.  3163. — No  location  certificate  shall  claim 
more  than  one  location,  whether  the  location  be  made  by 
one  or  several  locators.  And  if  it  purport  to  claim  more  than 
one  location  it  shall  be  absolutely  void,  except  as  to  the 
first  location  therein  described,  and  if  they  are  described 
together,  or  so  that  it  can  not  be  told  which  location  is  first 
described,  the  certificate  shall  be  void  as  to  all. — Id. 

The  Statutory  Requirements  essential  to  a  loca- 
tion certificate  stated  in  section  3150  above  printed 
are  followed  by  like  statutes  in  all  the  mining  States 
and  Territories,  except  California  and  Alaska.  The 
statutory  requirements  in  the  several  States,  in  ad- 
dition to  those  above  noted,  are  tabulated,  page  59. 

Where  no  statutory  requirements  other  than  the 
Federal  Statute  exist,  a  certificate  following  the  form 
below  given  (page  72)  would  in  any  State  or  Territory 
fully  comply  with  the  requirements  of  the  law. 

Necessity  for  Record. 

The  Federal  Statute  does  not  in  terms  require  a 
record  to  be  made,  but  the  above  quoted  section  2324 
presupposes  record  in  some  form  or  at  least  some 
written  publication  of  title,  under  state  or  district 
law.  To  give  public  written  notice  of  claim  was  an 


RECORD.  69 

' 

almost  universal  custom  before  any  U.  S.  mining  act 
was  passed. 

In  the  early  periods  this  record  was  made  in  the 
office  of  the  district  recorder  and  in  some  States  this 
custom  prevails  to  the  present  time,  but  the  general 
statutory  requirement  is  to  make  it  in  the  office  of 
the  county  recorder. 

The  Time  to  Record  the  location  certificate  is 
fixed  by  statute  in  Colorado  within  3  months;  North 
and  South  Dakota  and  Wyoming,  60  days;  Alaska 
and  Washington,  90  days  from  date  of  discovery; 

Utah,  within  30  days;  Montana  and  Oregon,  60 
days;  Nevada,  90  days;  New  Mexico,  3  months  from 
date  of  posting  notice; 

Arizona  and  Idaho,  within  90  days  from  date  of 
location; 

In  California  no  time  is  fixed  by  statute. 

For  proper  office  or  offices  in  which  to  file  the  lo- 
cation certificate,  see  Statutory  Requirements  tabu- 
lated on  page  59. 

Where  there  is  no  organized  mining  district,  and 
therefore  no  district  recorder,  the  certificate  should 
always  be  filed  with  the  county  recorder. 

Recording  Location  Notice  as  Certificate. 

It  is  a  custom  in  California  and  in  many  local 
districts  elsewhere  to  make  the  location  notice  in  du- 
plicate, placing  one  on  the  claim  and  filing  the  other 
for  record.  The  same"  is  the  statutory  regulation  in 
Idaho,  Arizona,  Utah,  Oregon  and  New  Mexico.  The 
location  certificate,  or  record,  everywhere,  must  con- 
tain all  that  is  required  of  the  notice  besides  giving  a 
full  description  which  is  not  required  of  the  notice. 
If,  therefore,  the  custom  be  to  make  these  instruments 
duplicates,  each  must  contain  what  is  required  of  the 
greater  and  both  would  have  to  contain  a  full  de- 
scription with  reference  to  monuments,  to  conform 
to  the  Act  of  Congress.  If  not  exact  duplicates  it  is 
not  fatal.— Gird  v.  California  Co.  60  Fed.  531;  17  M.  R. 


70  RECORD. 

Location  Notice,  Without  Record. 

It  seems  undoubtedly  true  under  the  decisions, 
that  if  the  notice  contains  such  full  description  and 
no  record  is  required  by  rule  or  statute,  that  none  is 
required  by  the  Congressional  act. — Souter  v.  Maguire, 
21  Pac.  183;  Thompson  v.  Spray,  14  Pac.  185;  Haws  v. 
Victoria  Co.  160  U.  8.  303.  In  such  instance  the  notice, 
containing  the  required  reference  to  monuments, 
makes  the  location  complete  without  record.  But  to 
go  as  far  as  the  case  of  Poujade  v.  Ryan  (NevJ,  33 
Pac.  660,  and  hold  that  no  record  is  required  and  that 
the  notice  need  not  contain  the  Congressional  de- 
scription, seems  to  construe  away  the  force  and  mean- 
ing of  the  Act  entirely. 

Filing  for  Record  is  equivalent  to  record,   and 

subsequent  errors  or  neglect  of  the  officer  can  not 
prejudice  the  locator. — Weese  v.  Barker,  7  Colo.  178; 
Shepard  v.  Murphy,  58  Pac.  588. 

The  Record  Follows  the  Location,  as  the  location 

follows  the  discovery.  The  record  is  a  publication 
of  the  location,  and  is  therefore  called  the  location 
certificate.  Many  of  the  old  forms  of  these  certifi- 
cates are  not  sufficiently  specific,  and  the  Surveyor- 
General  frequently  requires  a  new  record  to  be 
made  before  issuing  order  of  survey  upon  applica- 
tion for  patent. 

The  Certificate  As  Proof  of  the  Acts  of  Location. 

See  EJECTMENT. 


RECORD. 


71 


1 


J 


72  RECORD. 

Description  of  Claim — Ties. 

The  record  contains  a  description  of  the  claim 
as  staked  on  the  ground.  If  not  properly  staked,  the 
record  does  not  make  a  good  location;  but  if  the  loca- 
tion has  been  properly  made,  the  certificate  can  read- 
ily be  written  so  as  to  describe  it  fully,  whether  lo- 
cated by  a  surveyor  or  otherwise.  The  essentials  of 
a  valid  location  certificate  are  stated  concisely  in 
sections  3150,  3151  and  3163  above  printed,  and  a 
form  is  given  below. 

The  discovery  shaft  should  always  be  treated  as 
an  essential  point  of  description,  and  tied  to  some 
near  and  prominent  monument,  with  course  and  dis- 
tance therefrom,  because  it  is  a  much  more  permanent 
monument  than  any  stake  or  corner. 

In  addition,  one  or  more  corners  should  be  tied 
to  other  "natural  objects  or  permanent  monuments," 
a  government  corner  or  discovery  shaft  of  an  ap- 
proved survey  being  unobjectionable. 

FORM  OF  LOCATION  CERTIFICATE. 

KNOW  ALL  MEN  BY  THESE  PRESENTS,  That  I,  Edmund 
H.  Lunken,  of  the  City  and  County  of  Denver,  State  of  Colo- 
rado, claim  by  right  of  discovery  and  location,  fifteen  hun- 
dred feet,  linear  and  horizontal  measurement,  on  the  CAR- 
DINAL LODE,  along  the  vein  thereof,  with  all  its  dips,  varia- 
tions and  angles  ;  together  with  one  hundred  and  fifty  feet  in 
width  on  each  side  of  the  middle  of  said  vein  at  the  sur- 
face; and  all  veins,  lodes,  ledges,  deposits  and  surface  ground 
within  the  lines  of  said  claim  ;  seven  hundred  and  fifty  feet 
on  said  lode  running  north  88°  east  from  the  center  of  the 
discovery  shaft,  and  seven  hundred  and  fifty  feet  running 
south  88°  west  from  said  center  of  discovery  shaft. 

Said  claim  is  situate  on  the  eastern  slope  of  Bull  Hill 
in  Cripple  Creek  Mining  District,  County  of  Teller,  State  of 
Colorado,  and  is  hounded  and  described  as  follows,  to  wit : 

Beginning  at  corner  No.  1  (northwest  corner  of  claim), 
from  ivhich  deep  shaft  of  Manning  Lode  bears  N.  2°  E.  70 
feet  and  running  thence  8.  2°  E.  300  feet  to  corner  No. 
2;  thence  N.  88°  E.  750  feet  to  south-center  stake;  thence 
same  course  750  feet  to  corner  No.  3;  thence  N.  2°  W.  3SO 
feet  to  corner  No.  k  (northeast  corner),  from  which  Hazed' 
pine  tree  2  feet  in  diameter  marked  "F,"  bears  N.  8°  W. 
22  feet;  thence  8.  88°  W.  750  feet  to  north-center  stake,  and 
thence  same  course  750  feet  to  the  place  of  beginning. 


RECORD.  ^  73 

From  discovery  shaft;  corner  No.  2  of  Neivman  Lode, 
survey  lot  No.  787,  bears  B.  45°  E.  280  feet.,  and  discovery 
shaft  of  Wiseman  Lode  bears  S.  Jt5°  W.  275  feet. 

Date  of  discovery,  January  2,  1903.  Staked  and  lo- 
cated February  2,  1903.  Date  of  certificate,  February  3, 
1903.  EDMUND  H.  LUNKEN. 

ATTEST 
W.  E.  SoRelle. 

The  above  form  corresponds  in  ties  and  courses 
to  the  diagram  on  page  71. 

Descriptive  Defects  in  Location  Certificate. 

In  addition  to  the  cases  cited  on  page  63  under 
"LOCATION,"  there  are  certain  other  decisions  in 
particular  requiring  mention  because  of  their  ten- 
dency to  condone  very  vague  records. 

The  most  material  of  these  cases,  because  de- 
cided by  the  Court  of  highest  authority,  is  that  of 
Hammer  v.  Garfield  Co.  16  M.  R.  125.  There,  the 
opinion,  after  stating  that  "a  reference  to  some  nat- 
ural object  or  permanent  monument"  is  required, 
says:  "Of  course  the  section  means  when  such  ref- 
erence can  be  made."  And  it  then  proceeds  to  up- 
hold a  record  whose  only  call  or  tie  was  "about  fif- 
teen hundred  feet  south  of  Vaughn's  Little  Jennie 
Mine."  The  opinion  further  treats  the  claim's  own 
stakes  as  sufficient  monuments.  It  was  with  refer- 
ence to  this  case  that  HALLETT  J.  on  objection  being 
made  in  the  Circuit  Court  to  an  indefinite  record, 
overruled  the  objection  with  the  observation  "The 
Supreme  Court  has  repealed  the  Statute  on  this 
point." 

In  Gamer  v.  Glenn,  20  Pac.  654,  a  "large  bowlder 
at  the  west  end  of  the  Tim  lode"  was  the  starting 
point.  This  was  the  only  monument.  Adjoiners 
were  named,  but  it  was  proved  that  no  such  claim  as 
the  "Tim"  was  known  or  existed.  The  record  was 
maintained.  The  test  applied  in  this  case  was  a  fair 
and  reasonable  one  in  its  terms,  to  wit:  it  must  be  a 
description  which  would  enable  a  person  of  reason- 
able intelligence  to  find  the  claim  and  trace  its 


74  ^RECORD. 

boundaries.  Cited  and  followed  on  very  similar  rec- 
ord in  Bramlett  v.  Flick,  57  Pac.  871. 

Hanson  v.  Fletcher,  37  Pac.  480,  decided  in  terms 
that  the  claim's  own  corners  were  sufficient  monu- 
ments within  the  "Act,  treating  them  as  a  complete 
description  without  even  referring  to  the  attempted 
tie  to  another  mine  about  a  mile  distant.  An  equally 
vague  description  was  upheld  on  the  same  lines  in 
Credo  Co.  v.  Highland  Co.  95  Fed.  911.  Both  these 
decisions  cite  and  follow  the  Garfteld  case,  supra; 
Farmington  Co.  v.  Rhymney  Co.  58  Pac.  832. 

The  statute  requires  the  location  to  be  "marked 
on  the  ground"  and  also  a  "description  by  reference.'' 
This  means  and  has  always  been  considered  to  mean 
a  reference  to  an  object  or  monument  distinct  from 
its  own  stakes  or  corners,  but  the  above  citations  go 
far  towards  maintaining  any  record  which  bounds 
itself  by  calling  from  corner  to  corner. 

In  Darger  v.  Le  Sieur,  30  Pac.  363,  and  Brown  v. 
Levan,  46  Pac.  661,  the  location  certificates  were  held 
void  for  indefiniteness;  while  in  Bennett  v.  Hark- 
rader,  158  U.  8.  443,  it  was  held  that  a  location  cer- 
tificate with  practically  no  description  at  all  was 
good.  This  last  case  can  .not  be  safely  depended  on 
as  a  precedent  to  be  followed,  as  the  Court  proceed 
to  pass  finally  on  the  law  by  holding  that  an  Act  of 
Congress  of  1884,  23  Stat.  L,  24,  validated  all  claims 
in  Alaska  prior  to  its  date  without  regard  to  form, 
if  the  claimants  were  in  actual  possession. 

A  description  by  the  points  of  the  mariner's  com- 
pass was  maintained  in  Hayden  v.  Brown,  53  Pac. 
490. 

Rule  of  Construction. 

Location  certificates  are  of  a  class  to  which  a  lib- 
eral, not  a  technical,  rule  of  construction  will  be  ap- 
plied and  any  language  which  will  be  fair  notice 
to  subsequent  prospectors  will  make  a  sufficient  de- 
scription.— Fissure  Co.  v.  Old  Susan  Co.  €3  Pac.  587; 


RECORD.  75 

Morrison  v.  Regan,  67  Pac.  955;  Wells  v.  Davis,  62 
Pac.  3;  McCann  v.  McMillan,  Id.  31. 
But  Where  the  State  Statute  Requires  a  Descrip- 
tion more  specific  than  that  implied  from  the  A.  C. 
Sec.  2324,  such  requirements  are  mandatory  and  a 
record  calling  only  for  its  own  corners  is  void. — 
Purdum  v.  Laddin,  59  Pac.  153;  the  same  as  to  any 
such  statutory  requirements  prescribing  details  of 
location. — Copper  Globe  Co.  v.  Allman,  64.  Pac.  1020. 

Tying  to  Locating  Monument. 

In  Idaho  there  must  not  only  be  a  description 
by  reference  to  natural  object  or  permanent  monu- 
ment, but  such  object  must  be  tied  both  by  course 
and  distance  to  the  monument  erected  at  the  point 
of  discovery. — Clear  Water  Co.  v.  San  Garde,  61  Pac. 
137. 

Surplusage — Misdescription. 

The  addition  of  statements  not  pertinent  or  ma- 
terial does  not  vitiate  the  paper. — Preston  v.  Hunter, 
67  Fed.  996.  And  where  there  is  a  false  course  or  a 
false  tie,  but  after  discarding  the  misleading  clause 
enough  remains  to  fully  identify  the  claim,  the  rec- 
ord is  valid.  Or  a  mistake  in  course  or  distance  may 
be  corrected  by  a  call  for  a  monument  or  some  ob- 
jective point. — Smith  v.  Newell,  86  Fed.  56.  The 
fact  that  the  last  call  fails  to  close  will  not  vitiate 
a  location  certificate  otherwise  -regular. — Providence 
Go.  v.  Burke,  57  Pac.  641. 

Parol  Proof  to  Connect  the  Paper  With  the  Thing 
Described — Ultimate  Question  of  "Location 
Proved"  for  the  Jury. 

Where  the  description  is  uncertain  by  reason 
of  latent  defects — that  is,  where  the  record  has  suf- 
ficient calls,  but  the  Court  can  not  tell  from  in- 
spection whether  such  calls  are  natural  objects  or 
permanent  monuments — if  the  paper  makes  out  a  suf- 
ficient description,  conditioned  that  they  be  such  ob- 
jects or  monuments,  the  certificate  will  be  admitted, 


76  RECORD. 

leaving  the  jury  to  decide  this  as  a  question  of  fact. 
— Upton  v.  Larkin,  15  M.  R.  404;  O'Donnell  v.  Glenn, 
19  Pac.  302;  Russell  v.  Chumasero,  15  M.  R.  508.  The 
sufficiency  of  the  location — that  is,  whether  the  facts 
proved  show  a  location  complying  with  the  law  as  the 
Court  gives  them  the  law — is  for  the  decision  of  the 
jury. — Flavin  v.  Mattingly,  19  Pac.  384;  Fissure  Co. 
v.  Old  Susan  Co.  63  Pac.  587. 

Whether  certain  monuments  of  a  certain  size 
would  mark  the  boundaries  so  that  they  could  be 
readily  traced,  is  for  the  jury  to  say.— Taylor  v. 
Middleton,  15  M.  R.  284. 

The  claimant  may  by  parol,  identify  the  objects 
called  for  as  permanent  monuments. — Seidler  v.  Max- 
field,  20  Pac.  794;  Metcalf  v.  Prescott,  16  M.  R.  137. 
And  a  government  corner  is  a,  good  call,  although  its 
true  position  was  seriously  disputed. — Gird  v.  Cali- 
fornia Co.  60  Fed.  531. 

The  Test  of  Sufficiency. 

On  the  same  line  as  the  above  case  of  Gamer  v. 
Glenn,  and  stating  the  converse  of  the  proposition, 
the  party  attacking  the  certificate  may  show  that  a 
person  could  not  find  the  premises,  taking  the  loca- 
tion certificate  for  a  guide.— Dillon  v.  Bayliss,  27  Pac. 
725. 

Contradicting. 

A  location  certificate  regular  on  its  face  may  be 
shown  by  parol  to  be  false  in  what  it  calls  for. — 
Dillon  v.  Bayliss,  27  Pac.  725.  Its  recited  dates  may 
be  proved  not  true. — Muldoon  v.  Brown,  59  Pac.  720. 
The  same  case  holds  that  the  misdating  must  be 
pleaded.  But  that  is  to  require  a  party  to  plead  his 
evidence. 

The  locator  is  estopped  to  deny  the  validity  of 
his  discovery  or  location  as  against  his  grantee. — 
Blake  v.  Thome,  16  Pac.  -270;  McCarthy  v.  Speed,  80 
N.  W.  135. 


RECORD.  77 

Overlapping  Stakes. 

Where  a  fractional  claim  was  located  by  stakes 
all  set  on  or  near  the  lines  of  the  surrounding  claims, 
the  staking  was  upheld. — West  Granite  Co.  v.  Gran- 
ite Co.  17  Pac.  547.  And  the  same  where  through 
locating  in  the  night  the  stakes  overset  on  the  ad- 
joiners. — Doe  v.  Tyley,  14  Pac.  375. 

Immaterial  Calls. 

The  statute  does  not  require  the  certificate  to 
state  the  distance  from  the  discovery  shaft  to  the 
side  lines. — Quimby  v.  Boyd,  8  Colo.  194. 

Wrong  County. 

Where  the  record  is  made  in  the  right  county 
but  a  wrong  county  is  called  for  in  the  description 
the  error  is  not  fatal. — Metcalf  v.  Prescott,  16  M.  R. 
137.  Like  ruling  where  the  record  failed  to  name 
county  or  State.— Talmadge  v.  St.  John,  62  Pac.  79. 

Verification. 

A  statute  of  Montana  requires  the  location  cer- 
tificate, there  called  the  Declaratory  Statement,  to  be 
verified  by  one  of  the  locators  or  by  an  officer  of  any 
corporation  locating.- — Mattingly  v.  Leivisohn,  35  Pac. 
111.  The  rulings  on  what  it  must  contain  have  been 
technical  if  not  extreme. — McCowan  v.  McLay,  40 
Pac.  602;  Berg  v.  Koegel,  Id.  605. 

A  like  statute  in  Idaho  requires  the  verification 
to  show  that  the  locator  is  a  citizen  of  the  United 
States;  that  no  part  of  the  ground  claimed  has  been 
located,  or  if  located  it  has  been  abandoned  or  for- 
feited, and  that  the  locator  has  opened  new  ground 
to  the  depth  of  ten  feet.  Oregon  requires  an  affida- 
vit showing  that  the  required  location  work  has  been 
performed. 

Such  requirements  are  legitimate  subjects  of  state 
legislation  under  R.  S.  Sec.  2322. — Van  Buren  v.  Mc- 
Kinley,  66  Pac.  936. 


78  RECORD. 

Priority  of  Record  is  so  generally  involved  with 

questions  of  priority  of  location  and  of  continued 
possession  that  this  point  has  in  most  cases  less 
weight  than  is  generally  supposed.  Record  is  the 
inception  of  the  written  title,  but  the  actual  title 
of  a  mining  claim,  properly  followed  up,  reaches 
back  to  the  discovery. 

But  if  a  discovery  be  not  followed  by  a  location 
and  record  within  the  time  fixed  by  the  statute,  an 
intervening  record  becomes  the  prior  title.  In  other 
words,  the  rights  acquired  by  discovery  are  forfeited 
by  neglect  to  perfect  the  title  by  location  and  record; 
and  that  title  which  if  properly  followed  up  would 
have  dated  from  discovery,  will,  if  it  be  not  so  fol- 
lowed up,  be  suspended  in  favor  of  any  valid  record 
made  after  the  expiration  of  a  reasonable  time,  or 
the  period  fixed  by  statute,  and  before  any  record  of 
such  prior  discovery. 

Or  a  record  filed  before  the  statutory  period  has 
expired,  although  based  on  a  junior  discovery,  be- 
comes the  senior  title  the  moment  the  time  allowed 
to  the  first  discovery  to  complete  its  record  has 
elapsed  without  such  record  being  consummated. 

The  same  rule  applies  to  any  senior  locator  who 
allows  the  time  allowed  for  sinking  his  discovery 
shaft,  to  expire  before  he  has  reached  the  required 
depth  and  found  the  required  crevice. 

Actual    Possession    Without    Valid   Location    or 
Record. 

The  cases  upon  this  point  require  careful  ex- 
amination to  ascertain  the  distinctions  made  and 
even  after  such  examination  manifest  inconsistencies 
appear. 

One  series  of  cases  states  that  where  a  party  is  in 
actual  possession  no  stranger  can  invade  such  pos- 
session in  order  to  initiate  an  adverse  title;  in  other 
words,  a  prospector  can  not  go  upon  the  claim  how- 
ever invalid  or  defective,  to  sink  a  discovery,  set  up 
a  notice  or  plant  stakes. — Phenix  Co.  v.  Lawrence,  12 


RECORD.  79 

M.  R.  261;  North  Noonday  Co.  v.  Orient  Co.  9  M.  R. 
524;  Weese  v.  Bar  Jeer,  7  Colo.  178;  Craig  v.  Thompson, 
10  Colo.  517;  Rush  v.  French,  25  Pac.  816. 

Certain  of  these  cases  hold  that  he  may  not  in- 
vade the  actual  workings  then  or  lately  occupied. — 
Faxon  v.  Barnard,  9  M.  R.-516.  Others  hold  that  he 
may  not  enter  within  the  lines  of  the  claim. — Eilers 
v.  Boatman,  15  M.  R.  462. 

The  above  citations  can  be  justified,  within  cer- 
tain limits,  on  the  principle  of  preserving  the  peace 
on  the  public  domain.  But  their  logical  result,  if 
taken  without  qualification,  would  be  that  a  party  in 
possession  could  hold  by  his  possession  alone,  in  dis- 
regard of  all  the  requirements  of  the  State  Statute 
and  of  the  Acts  of  Congress. 

On  the  other  hand  there  are  many  decisions  to 
the  effect  that  a  party,  after  the  lapse  of  the  statutory 
time  to  complete  location  and  record,  can  not  hold 
against  a  claim  later  in  discovery  but  which  has  been 
the  first  to  complete  a  valid  location  and  record  under 
the  Statute — that  a  miner  can  hold  his  claim  only  by 
compliance  with  the  regulations  prescribed  by  the 
owner  of  the  fee  (the  United  States)  and  the  State 
or  district  regulations  which  such  owner  has  author- 
ized.— McKinstry  v.  Claris,  4  Mont.  395;  Noyes  v. 
Black,  Id.  527;  Hor swell  v.  Ruiz,  15  M.  R.  488;  Gar- 
field  Co.  v.  Hammer,  8  Pac.  153;  O-leeson  v.  Martin 
White  Co.  9  M.  R.  435;  Sweet  v.  Webber,  7  Colo.  443; 
Lalande  v.  McDonald,  13  Pac.  349;  DuPrat  v.  James, 
15  M.  R.  341. 

First  Complete  Location — One  Party  in  Default. 

The  first  In  time  to  comply  with  all  the  require- 
ments, after  allowing  to  the  one  who  takes  the  first 
step  to  initiate  a  title  his  reasonable  or  his  statutory 
time  to  complete  the  same  is  the  first  in  law. 

If  the  first  discoverer  fail  to  sink  his  shaft 
within  the  statutory  period,  or  to  stake  or  record 
within  the  time  fixed  by  law  (or  within  a  reasonable 
time  where  there  is  no  Statute),  and  a  second  party 


80  RECORD. 

makes  a  discovery  while  the  first  party  is  in  default, 
such  second  party  has  the  statutory  time  to  complete 
his  location  and  record  and  will  hold  the  ground 
against  the  original  discoverer,  although  such  orig- 
inal discoverer  perfects  his  location  and  record  be- 
fore the  discovery  of  the  second  location  is  complete. 

We  think  the  language  of  the  two  preceding 
paragraphs  is  justified  by  the  language  of  the  Su- 
preme Court  in  Lockhart  v.  Johnson,  181  U.  8.  527,  and 
many  other  cases. — Copper  Co.  v.  Allman,  64  Pac. 
1020;  Gregory  v.  Pershbaker,  Id  M.  R.  602;  Patterson 
v.  Hitchcock,  5  M.  R.  542. 

There  is,  however,  one  exceptional  case  wholly 
discordant  with  this  proposition — that  of  Omar  v. 
Soper,  15  M.  R.  496.  In  this  case  the  Golden  Bell 
lode  was  first  discovered,  put  up  its  notice,  sunk  its 
shaft  in  due  time,  but  did  not  record  until  the  three 
months  had  expired.  The  Verde  had  made  a  discov- 
ery during  the  sixty  days  allowed  to  sink  the  Golden 
Bell  shaft,  making  such  discovery  beyond  the  dis- 
tance claimed  by  the  Golden  Bell  notice.  After  the 
three  months  allowed  to  the  Golden  Bell  had  expired, 
and  when  the  Golden  Bell  was  in  default  but  the 
Verde  within  its  time,  the  Verde  made  its  survey — 
by  such  survey  taking  up  ground  covered  by  the 
Golden  Bell  notice.  The  court  held  that  the  Verde, 
though  its  discovery  shaft  was  sunk  on  clear  ground, 
was  a  title  initiated  by  trespass  and  could  not  be 
made  the  basis  of  a  claim  to  survey  over  the  Golden 
Bell  territory. 

No  exact  rule  can  be  laid  down  to  meet  every 
variation  in  which  the  question  could  present  itself, 
but  after  conceding  that  a  man's  actual  occupation  of 
his  workings  may  not  be  invaded,  and  that  a  drift 
would  amount  to  such  actual  occupation  of  the  vein 
for  the  length  of  such  drift  upon  the  vein  above  and 
below;  and  that  an  adverse  entry  would  not  be  al- 
lowed so  near  to,  although  not  actually  upon,  the 
workings  of  the  prior  party  as  to  threaten  to  provoke 
a  breach  of  the  peace — it  would  seem  that  after  such 


RECORD.  .  81 

concessions,  the  first  party  having  made  no  record, 
or  no  location  certificate  amounting  to  a  valid  record, 
or  having  otherwise  failed  in  any  essential  point 
necessary  to  constitute  a  valid  location,  the  ground 
would  be  open  to  the  location  and  record  of  a  valid 
claim  thereon. — Lockhart  v.  Wills,  54  Pac.  336. 

The  Supreme  Court  of  the  United  States  says 
"such  location  is  a  condition  precedent  to  the  grant. 
Mere  possession  not  based  upon  a  valid  location  would 
not  prevent  a  valid  location  under  the  law." — Belk  v. 
Meagher,  1  M.  R.  534. 

Record  Complete  Before  Adverse  Rights  Initiated. 
Notwithstanding  delay  to  record  or  delay  to  sink 
discovery  or  to  set  stakes  or  to  find  a  well-defined 
crevice  or  to  do  any  other  essential  act  of  location,  it 
has  been  repeatedly  and  in  many  forms  held  that  if  at 
length  the  record  or  location  be  in  fact  perfected 
before  the  hostile  title  had  its  inception,  that  the 
title  to  such  delayed  but  finally  completed  location  is 
perfect  as  against  any  later  initiated  title,  and  that 
the  last  act  of  location  relates  back  to  and  the  title 
begins  from  the  original  date  of  discovery. — McGinnis 
v.  Egbert,  15  M.  R.  329;  Preston  v.  Hunter,  67  Fed. 
996. 

All  Parties  in  Default. 

In  the  suit  between  the  Green  Mountain  and  the 
Ontario  it  appeared  that  the  Green  Mountain  was  dis- 
covered in  August,  1877,  and  recorded  in  March,  1878. 
The  Ontario  was  discovered  in  February  and  recorded 
in  July,  1878.  Each  had  exceeded  the  three  months 
allowed  by  law  to  record  and  the  priority  in  title  (as 
to  this  point)  was  given  to  the  first  discovery.  It 
seems  that  it  would  have  been  otherwise  if  the  On- 
tario, although  a  later  discovery,  had  completed  its 
record  within  the  three  months. — Faxon  v.  Barnard, 
9  M.  R.  515. 

The  Green  Mountain  had  both  first  discovery  and 
first  record,  but  with  a  long  interval  between.  Dur- 
ing its  delay  a  second  discovery  had  intervened,  but 


82  RECORD. 

it  also  over-stepped  the  statutory  time  and  so  allowed 
the  Green  Mountain  to  secure  the  first  record.  This 
case  has  been  lately  approved  in  Lockhart  v.  Johnson, 
181  U.  8.  527.  We  have  always  contended  that  where 
all  parties  are  in  default  in  completing  their  location 
and  record  within  the  statutory  periods  that  the  first 
record  based  upon  a  valid  discovery  and  location  be- 
comes a  perfected  title  and  takes  the  ground  without 
regard  to  priority  of  discovery. — Copper  Co.  v.  All- 
man,  64  Pac.  1020. 

Possession  During  Locating  Period. 

The  possession  of  the  prospector  during  the  pe- 
riod allowed  by  law  to  complete  his  location  and 
record  is  protected,  although  he  has  so  far  no  paper 
title. — Erhardt  v.  Boaro,  15  M.  R.  472;  Marshall  v. 
Harney  Peak  Co.  47  N.  W.  290.  His  location  certifi- 
cate when  recorded  relates  back  to  the  date  of  his 
discovery. 

And  no  party  can  intrude  within  his  lines  marked 
out  or  within  the  ground  which  he  has  a  right  to 
cover  during  that  period — limited  to  750  feet  on  each 
end  of  his  discovery,  unless  his  location  notice  (page 
38)  fixes  the  number  of  feet  claimed  each  way. — Bram- 
lett  v.  Flick,  57  Pac.  869. 

Possession    Without    Valid    Location    or   Kecord 

After  Such  Period  Elapsed. 

Possession,  at  all  times,  without  regard  to  record, 
location  or  even  the  fee  simple,  still  gives  a  certain 
title  as  against  a  mere  trespasser,  upon  which  eject- 
ment and  other  actions  may  be  maintained. — Camp- 
bell v.  Uankin,  12  M.  R.  257;  Hawxhurst  v.  Lander, 
Id.  214;  Haios  v.  Victoria  Co.  160  U.  8.  303.  Long  con- 
tinued possession  presumes  ownership. — Risch  v. 
Wiseman,  59  Pac.  1111.  But  as  we  have  already  inti- 
mated, such  right  by  possession  yields  place  at  once 
to  right  by  title,  when  such  title  is  offered  and 
proved. — Wilson  v.  Triumph  Co.  56  Pac.  301.  It  re- 
quires location  to  give  the  right  of  possession. — Jor- 
dan v.  Duke,  36  Pac.  896.  See  "EJECTMENT." 


RKCORD.  83 

Possession  is  a  title  only  by  sufferance  in  default 
of  something  better — it  is  the  starting  point,  not  the 
goal  of  title — and  will  not  prevail  against  the  fee 
simple;  Gourchaine  v.  Bullion  Co.  12  M.  R.  235;  or 
against  a  title  perfected  under  the  district  rules; 
English  v.  Johnson,  Id.  202;  or  against  a  complete 
location  and  record  made  in  compliance  with  the  law. 
— Sears  v.  Taylor,  5  M.  R.  318.  Where  neither  party 
perfects  a  valid  location  the  first  in  possession  has  the 
better  right. — Neuebaumer  v.  Woodman,  26  Pac.  900. 

Trespass — Force — Fraud. 

No  right  can  be  initiated  on  government  land 
by  force  or  clandestine  entry  upon  the  actual  posses- 
sion of  another,  whether  the  location  of  such  other 
be  valid  or  invalid. — Nevada  Co.  v.  Home  Co.  98  Fed. 
674-  Title  to  a  mining  claim  cannot  be  initiated  by 
an  entry  upon  a  prior  valid  existing  location.— Kirk 
v.  Meldrum,  65  Pac.  634-  But  the  possession  of  the 
first  occupant,  where  he  has  no  valid  location,  does 
not  prevent  an  entry  by  a  later  party  intending  to 
make  a  location. — Thallmann  v.  Thomas,  111  Fed.  277. 

Defective  Record  Aided  by  Possession. 

In  Eaton  v.  Norris,  63  Pac.  856,  the  Court  consid- 
ered both  the  fact  of  continued  possession  and  the 
fact  that  the  intruders  had  admitted  knowledge  of 
the  prior  claim — as  matters  of  evidence  to  aid  the 
older  title.  These  dicta  were  wholly  unnecessary  to 
the  decision,  as  the  prior  locators  had  substantial 
proof  of  location  without  these  incidents.  In  Tal- 
madge  v.  St.  John,  62  Pac.  79,  a  description  calling 
only  for  its  own  corners  was  held  valid  by  the  aid  of 
such  possession.  But  in  Brown  v.  Oregon  Co.  110  Fed. 
728,  it  is  held  in  terms  that  if  the  prior  location  is 
not  valid  the  later  comer  may  locate  though  with  full 
notice  of  the  prior  asserted  claim. 

In  general  terms,  the  first  who  complies  with  the 
law  in  completing  his  location  is  the  first  in  right 
and  this  complaisant  recognition  of  priority  on  the 
ground,  and  of  void  notices,  as  tending  to  raise  a 


84  ABANDONMENT. 

supposed  equity,  is  simply  judicial  weakness,  leading 
only  to  uncertainty  and  injustice.  The  Oregon  Co. 
case  boldly  states  the  law  as  it  shoitld  be  stated.  As 
between  two  prospectors,  the  fact  that  one  is  the 
first  comer  or  the  fact  that  the  second  knew  that  the 
first  was  on  the  ground  before  him,  does  not  weaken 
the  rights  of  the  second  comer  if  he  be  the  first  to 
comply  with  the  law — the  common  protector  of  the 
rights  of  both.  <  /  !  i- 

Extensions.  j  -;  ;^| 

The  paragraph  from  section  2320,  quoted  on 
page  27,  of  itself  disposes  of  all  "extensions"  and 
side  claims,  unless  they  be  of  themselves,  howsoever 
named,  independent  discoveries  and  locations.  "Ex- 
tension" is  a  word  often  added  to  the  name  proper 
of  a  location  staked  off  to  the  right  or  left  of  some 
developed  vein,  suggestive  of  the  hope,  if  not  the 
fact,  that  the  new  location  is  planted  on  the  same 
ore  body  on  its  strike. 

Lode  Location  Held  (rood  as  Placer, 

Where  a  party  had  located  a  claim,  not  describ- 
ing it  as  a  lode,  but  of  the  length  and  width  of  a  lode 
claim  upon  a  deposit  usually  classed  as  placer,  the 
Court  held  that  placers  and  lodes  are  taken  up  by 
substantially  the  same  procedure  and  that  if  what 
was  done  made  it  a  valid  mining  location  it  would  be 
sustained  as  a  placer. — McCann  v.  McMillan,  62 
Pac.  31. 


ABANDONMENT. 


District  and  Territorial  Regulations. 

The  district  regulations  in  early  years  often  de- 
clared what  acts  or  omissions  should  amount  to  an 
abandonment.  Failure  to  represent  or  work  for  a 
single  season  or  even  for  a  very  limited  period  was 
usually  sufficient  cause.  As  a  camp  became  more  or 


ABANDONMENT.  85 

less  deserted  the  miners  about  to  leave  frequently 
met  and  passed  resolutions  to  the  other  extreme — 
that  all  claims  should  remain  valid  without  any  work 
or  representation. 

Where  the  district  organizations  are  still  pre- 
served a  rule  covering  or  attempting  to  cover  this 
point  may  remain  valid  and  enforceable  except  that 
a  rule  requiring  less  than  $100  annual  labor  would 
be  an  infringement  upon  the  Congressional  Act. — 
Original  Co.  v.  Winthrop  Co.  60  Cal.  631;  Northmore 
v.  Simmons,  97  Fed.  386. 

The  legislatures  have  not  attempted  the  danger- 
ous matter  of  defining  in  terms  what  amounts  to 
abandonment.  The  circumstances  surrounding  each 
particular  case  vary  too  much  to  make  a  sweeping 
rule  in  all  instances  fair. 

Confined  to  Possessory    Titles — Associated    With 
Annual  Labor. 

Although  the  title  to  mining  claims  has  been  at 
all  times  of  that  class  which  might  be  lost  by  aban- 
donment (Ferris  v.  Coover,  10  Cal.  631),  and  although 
a  technical  abandonment  may  at  this  day  be  proved 
with  regard  to  any  sort  of  possessory  title,  the  sub- 
ject has  lost  much  of  its  importance  except  in  con- 
nection with  the  annual  labor  acts. 

A  Question  of  Fact  and  Intention. 

Abandonment  is  a  question  of  fact,  and  the  fact 
is  to  be  found  from  the  intention. — Myers  v.  Spooner, 
9  M.  R.  519;  Taylor  v.  Middleton,  15  M.  R.  284;  Mal- 
lett  v.  Uncle  Sam  Co.  1  M.  R.  17 ;  Oreamuno  v.  Uncle 
Sam  Co.  Id.  32;  Marshall  v.  Barney  Peak  Co.  4?  A7- 
W.  Rep.  290.  It  is  a  question  of  fact  for  the  jury. — 
Aye  v.  Philadelphia  Co.  44  Atl.  555.  Desertion  and 
abandonment  are  equivalent  terms. — Derry  v.  Ross, 
1  M.  R.  1. 

Abandonment  being  thus  a  matter  of  intention, 
it  follows  that  even  after  doing  his  work  if  the  miner 
should  deliberately  quit  his  claim  with  expression  of 
his  intention  to  never  return  to  it,  or  give  permission 


86  ABANDONMENT. 

to  others  to  occupy  it  as  their  own,  such  manifest 
proof  of  intent  would  establish  abandonment;  but 
for  all  practical  purposes  the  performance  of  the 
annual  labor  is  the  test,  and  the  law  of  annual  labor 
involves  no  question  of  intent.— Depuy  v.  Williams, 
5  M.  R.  251;  Doherty  v.  Morris,  11  Colo.  12. 

Ceasing  to  work  because  ore  not  salable  is  no 
abandonment. — Hosford  v.  Metcalf,  84  N.  W.  1054. 

In  McCann  v.  McMillan,  62  Pac.  31,  parties  who 
had  expressed  their  intention  to  abandon  and  begun 
to  re-locate  for  a  third  party  were  allowed  to  recall 
their  intention  and  were  held  to  have  not  abandoned. 

A  father  failed  to  do  the  work  in  1890.  His  son 
re-located  in  1891  and  afterwards  conveyed  to  the 
father.  The  location  of  1891  was  defective.  In  a 
suit  by  the  owner  of  a  later  location,  Held;  that  de- 
fendant, the  father,  could  not  recall  his  abandon- 
ment and  rely  on  his  original  title.— Niles  v.  Kennan, 
62  Pac.  360. 

Quitting  to  Lure. 

Such  a  thing  as  a  conditional  abandonment  can 
not  be  recognized.  Where  the  owner  allows  strangers 
to  hold  a  claim  under  color  of  title,  standing  by  and 
intending  to  resume  work  only  in  case  its  develop- 
ment shows  pay,  his  action  amounts  to  abandon- 
ment.— Trevaskis  v.  Peard,  44  Pac.  2JjS. 

How  Proved. 

Lapse  of  time,  though  not  conclusive,  is  an  in- 
cident tending  to  prove  abandonment. — Mallett  v. 
Uncle  Sam  Co.  1  M.  R.  17;  Beaver  Co.  v.  St.  Vrain 
Co.  6  Colo.  App.  130.  Leaving  tools  in  the  mine  tends 
to  disprove  it. — Harkness  v.  Burton,  9  M.  R.  318. 
Proof  that  a  stranger  had  relocated  ground  as  aban- 
doned does  not  prove  that  it  was  in  such  condition. — 
McGinnis  v.  Egbert,  15  M.  R.  329.  Abandonment  is 
not  presumed  and  is  to  be  proved  by  the  party  that 
asserts  it. — Johnson  v.  Young,  18  Colo.  625;  Nichols 
v.  Mclntosh,  19  Colo.  22. 


ABANDONMENT.  87 

Of  Prospect  Before  Kecord. 

Where  a  discoverer  by  conduct  shows  an  intent 
to  quit  and  not  perfect  his  location  begun,  the  claim 
is  abandoned  and  strangers  need  not  await  the  ex- 
piration of  the  prospector's  time  before  locating. — 
Kinney  v.  Fleming,  56  Pac.  122. 

Ditches  and  Water. 

Failure  to  use  water  and  allowing  ditch  to  go  to 
decay  are  evidence  tending  to  prove  abandonment. — 
Dorr  v.  Hammond,  7  Colo.  79;  Sieber  v.  Frink,  7 
Colo.  149.  But  non-user  alone  does  not  of  itself 
necessarily  imply  abandonment. — Welch  v.  Garrett, 
51  Pac.  405;  Integral  Co.  v.  Altoona  Co.  75  Fed.  379; 
N.  A.  Co.  v.  Adams,  104  Fed.  404.  A  ditch  may  be 
abandoned  without  abandonment  of  the  owner's  wa- 
ter rights.— Nichols  v.  Mclntosh,  19  Colo.  22. 

Other  Subjects  of  Abandonment. 

A  leasehold  interest,  water,  slag  and  tailings,  are 
things  which  may  be  lost  by  abandonment. — Glasgow 
v.  Chartiers  Co.  25  Atl.  232;  Barker  v.  Dale,  8  M. 
R.  597;  Dougherty  v.  Creary,  1  M.  R.  35;  McGoon  v. 
AnJceny,  Id.  9;  Porter  v.  Noyes,  10  N.  W.  77.  A  pros- 
pecting contract  may  be  abandoned. — Chadbourne  v. 
Davis,  15  M.  R.  620;  McLaughlin  v.  Thompson,  2 
Colo.  App.  135.  And  failure  to  supply  his  outfit  to 
the  prospector  will  justify  abandonment. — Murley  v. 
Ennis,  12  M.  R.  360. 

Pleading. 

It  has  been  ruled  that  abandonment  need  not  be 
specially  pleaded. — Bell  v.  Bed  Rock  Co.  1  M.  R.  45; 
Willson  v.  Cleaveland,  30  Cal.  192.  But  it  is  no  issue 
when  not  raised  by  either  pleadings  or  proof. — Cole- 
man  v.  Davis,  13  Colo.  98.  Where  the  abandonment 
is  by  reason  of  failure  to  (Jo  annual  labor,  the  deci- 
sions have  generally  required  a  special  plea  and  it  is 
hard  to  draw  a  tenable  distinction  between  them. 


88  ANNUAL.  LABOR. 

The  current  of  authority  is  that  abandonment 
must  be  specially  pleaded. — Hector  Co.  v.  Valley  View 
Co.  64  Pac.  20.5.— See  p.  102. 

Outstanding  Abandoned  Title. 

The  fact  that  there  may  have  been  locations  now 
abandoned  and  not  claimed  by  either  party  renders 
such  outstanding  titles  of  no  relevancy  to  the  rights 
of  either. — Craig  v.  Thompson,  10  Colo.  511. 


ANNUAL  LABOR, 


Annual  Expenditure. 

R.  S.  Sec.  2324.  *  *  *  — On  each  claim  located 
after  the  tenth  day  of  May,  eighteen  hundred  and  seventy- 
two,  and  until  a  patent  has  been  issued  therefor,  not  less 
than  one  hundred  dollars'  worth  of  labor  shall  be  per- 
formed or  improvements  made  during  each  year.  On  all 
claims  located  prior  to  the  tenth  day  of  May,  eighteen  hun- 
dred and  seventy-two,  ten  dollars'  worth  of  labor  shall  be  per- 
formed or  improvements  made  by  the  *first  day  of  January,, 
eighteen  hundred  and-  seventy-five,  and  each  year  thereafter, 
for  each  one  hundred  feet  in  length  along  the  vein  until  a 
patent  has  been  issued  therefor ;  but  where  such  claims 
are  held  in  common,  such  expenditure  may  be  made  upon 
any  one  claim ;  and  upon  a  failure  to  comply  with  these 
conditions,  the  claim  or  mine  upon  which  such  failure  oc- 
curred shall  be  open  to  relocation  in  the  same  manner  as 
if  no  location  of  the  same  had  ever  been  made,  provided 
that  the  original  locators,  their  heirs,  assigns,  or  legal 
representatives,  have  not  resumed  work  upon  the  claim 
after  failure  and  before  such  location.  *  *  *  — Sec  5,  A. 
C.  May  10,  1872. 

Amendment  of  1880,  Adopting  the  Calendar  Year. 

Sec.  2. — That  section  twenty-three  hundred  and 
twenty-four  of  the  Revised  Statutes  of  the  United  States  be 
amended  by  adding  the  following  words  :  "Provided,  That 
the  period  within  which  the  work  required  to  be  done  an- 
nually on  all  unpatented  mineral  claims  shall  commence  on 

*In  the  Revised  Statutes  the  date  printed  is  June  10, 
1874,  the  compilers  having  overlooked  the  second  Act  ex- 
tending the  time,  approved  June  6,  1874. — 18  Stat.  L.,  part 
S,  page  61. 


ANNUAL  LABOR.  89 

the  first  day  of  January  succeeding  the  date  of  location  of 
such  claim,  and  this  section  shall  apply  to  all  claims  located 
since  the  tenth  day  of  May,  anno  Domini  eighteen  hun- 
dred and  seventy-two." — Approved  Jan.  22,  1880. 

Not  Required  by  Statute  Before  1872. 

Annual  labor  was  not  required  by  either  Legisla- 
tive or  Congressional  law  until  after  the  passage  of 
the  A.  C.,  May  10,  1872. 

Often  Required  by  District  Rules. 

By  some  of  these  rules  a  man  was  bound  to  do 
some  work  upon  his  claim  every  week,  or  every 
month,  but  these  rules  in  most  sections  had  fallen 
into  disuse  at  the  time  of  the  passage  of  the  Act  re- 
ferred to.  Their  provisions  both  as  to  amount  re- 
quired and  the  period  in  which  to  perform  are  largely 
if  not  entirely  superseded  by  the  terms  of  the  Con- 
gressional Act. — See  p.  7. 

The  idea  of  annual  or  periodical  labor  is  not 
new;  it  was  a  part  of  the  Spanish  system,  and  gen- 
erally prevailed  on  the  Pacific  slope. 

The  A.  C.  May  10,  1872,  divided  lodes  into  two 
classes  with  respect  to  labor: 

First — Lodes  located  before   its   passage. 

Second— Lodes  located  after  its  passage. 

Claims  located  Before  May  10,  1872. 

The  amount  of  labor  required  on  all  lodes  was 
$10  for  each  hundred  feet,  but  where  claims  were 
held  in  common,  the  whole  amount  of  work  might 
be  done  on  one  claim.  The  time  for  the  first  work 
on  old  lodes  was  originally  fixed  to  expire  May  10, 
1873,  i.  e.,  one  year  after  the  passage  of  the  Act.  It 
was  further  extended  to  June  10,  1874,  and  finally 
postponed  to  January  1,  1875. — Thompson  v.  Jacobs, 
2  Pac.  714. 

The  Act  of  1880  made  no  change  either  in  the 
amount  or  time  of  annual  labor  on  old  claims.  It  has 
always  been  and  still  is,  $10  for  each  100  feet  during 
each  year  of  our  Lord,  beginning  January  1,  1875; 
and  the  time  between  May  10,  1872,  and  January  1, 


90  ANNUAL  LABOR. 

1875,    constituted   the   period   for   the   first    required 
labor. 

Where  the  lode  consists  of  undivided  claims  of 
100  or  200  feet  each,  as  in  the  case  of  most  locations 
made  before  May  10,  1872,  any  one  or  more  claims 
may  be  saved  by  the  expenditure  of  $10  worth  of  la- 
bor to  each  100  feet  which  the  owner  desires  to  segre- 
gate and  hold,  leaving  the  remainder  to  forfeiture; 
or  when  the  series  of  claims  are  held  in  common, 
the  full  amount  may  be  expended  on  any  one  claim, 
whether  they  were  originally  recorded  as  joint  or  as 
several  locations;  but  in  all  cases  where  less  than 
the  amount  required  to  hold  the  entire  lode  is  ex- 
pended, the  owner,  in  his  proof  of  labor,  should  state 
the  work  as  done  for  the  purpose  of  holding  pnly  so 
many  feet,  designating  where  they  lie  upon  the  lode. 

But  few  claims  remain  subject  to  this  law.  Dur- 
ing the  lapse  of  time,  now  more  than  thirty  years, 
they  have  been  either  abandoned  or  passed  on  to 
patent  or  have  been  re-located  under  the  Act  of  1872. 
When  so  relocated  they  would  be  governed  by  the 
terms  of  the  next  subdivision. 
Claims  Located  Since  May  10,  1872. 

The  various  extensions  of  time  for  «work  on  old 
lodes  did  not  apply  to  the  new  lodes.  The  period  for 
the  first  work  was  never  extended,  nor  has  any 
change  been  made  except  the  Act  of  1880.  Under 
the  original  Act  the  annual  period  for  labor  on 
claims  located  after  its  date,  May  10,  1872,  began  on 
the  date  of  location,  and  this  date  was  hard  to  fix 
with  exactness.  It  might  have  been  the  date  of  dis- 
covery, or  any  date  intermediate  between  discovery 
and  record.  The  Act  of  1880  makes  the  annual  period 
now  coincide  with  that  fixed  for  old  claims,  to  wit: 
each  calendar  year. 
Each  Claim  An  Entirety — Work  on  Subdivided 

Claim. 

The  1,500-foot  lodes  being  single  claims  of  that 
length  and  a  certain  amount  of  work  being  required 


ANNUAL,  LABOR.  91 

upon  the  claim  and  the  clause  as  to  "each  100  feet  in 
length  along  the  vein"  not  applying  to  these  new  loca- 
tions, it  does  not  seem  that  a  party,  by  expending 
any  portion  of  the  full  amount,  can  save  any  frac- 
tional portion  of  his  lode.  But  if  a  party  own  a 
segregated  portion  of  such  claim:  Is  he  required  to 
do  the  full  amount  essential  to  hold  a  claim,  in  case 
the  other  owners  refuse  to  contribute? 

It  seems  he  is  under  this  necessity,  and  each 
interested  party  must  see  for  himself  that  the 
amount  required  to  hold  the  claim  is  done  by  some 
person,  and  if  the  whole  burden  falls  upon  one  party, 
the  rest  of  the  claim  becomes  forfeit  to  such  party. 
There  is  no  distinction  made  between  those  who  own 
separate  feet  and  those  who  own  undivided  interests 
in  the  claim. 

The  word  "co-owners,"  used  in  the  Act,  does  not 
appear  to  be  used  in  its  ordinary  acceptation,  as  ten- 
ants in  common,  but  to  include  all  the  owners,  either 
in  common  or  after  they  have  segregated  their  inter- 
ests; the  claim  seems  to  be  treated  as  an  individual 
item  so  far  as  the  relations  between  the  Government 
and  the  miner  are  concerned;  if,  therefore,  all  the 
labor  is  performed  by  the  owner  of  the  east  end, 
he  may  claim  forfeit  of  the  west  end;  or  if  it  is  all 
performed  by  the  owner  of  an  undivided  half,  he 
is  in  position  to  become  the  sole  owner  by  proper 
notice  under  the  forfeiture  clause  upon  refusal  of 
the  other  co-tenant  to  contribute  his  proportion.  But 
this  is  only  the  apparent  reading  of  the  Act  as  to 
claims  which  have  been  segregated  into  several  parts, 
and  would  give  a  benefit  to  a  party  who  had  no  more 
connection  with  the  other  end  of  the  claim  than  a 
mere  stranger.  Consequently  this  can  only  be  treated 
as  a  suggestion  of  the  true  construction  of  an  Act 
which  is  so  worded  as  to  be  entirely  ambiguous  on 
this  point. 

The  above  paragraph  is  from  the  Fifth  edition 
of  this  book  in  1881,  but  we  have  seen  no  decision 


92  ANNUAL,  LABOR. 

nor  found  any  reason  to  since  change  it  as  the  true 
construction  of  the  Act. 

$500  Work  Already  Done. 

The  fact  that  sufficient  improvement  ($500 
worth)  has  been  done  to  authorize  application  for 
patent,  does  not  dispense  with  the  necessity  for  the 
annual  expenditure. 

Pending  Application  for  Patent,  until  entry,  the 
work  must  be  kept  up. — South  End  Co.  v.  Tinney, 
35  Pac.  89.  Where  an  applicant  after  publication 
delays  entry  and  neglects  his  annual  labor  the 
ground  is  open  to  relocation. — Gillis  v.  Doiv- 
ney,  85  Fed.  483.  But  see  on  this  point,  p.  451. 

Annual  Labor  After  Entry. 

It  has  been  decided  that  annual  labor  cannot  be 
required  after  entry  in  the  Land  Office,  although  the 
patent  has  not  yet  been  formally  issued;  and  such 
decision  is  clearly  correct,  because  the  patent,  when 
it  issues,  relates  back  to  the  date  of  entry,  and  so 
satisfies  the  wording  of  the  Act,  which  requires  the 
annual  labor  each  year  "until  patented." — Alta  Co. 
v.  Benson  Co.  16  Pac.  565;  145  U.  8.  428;  Aurora  Hill 
Co.  v.  85  Co.  15  R.  M.  581;  L.  0.  Reg.  14;  26  L.  D.  196: 
27  Id.  396;  31  Id.  87.  A  relocation  cannot  be  made 
on  entered  lands  so  long  as  the  entry  stands. — Neil- 
son  v.  Champaigne  Co.  Ill  Fed.  655;  Benson  Co.  v. 
Alta  Co.  145  U.  8.  428.  Nevertheless,  in  such  case,  a 
party  runs  the  risk  of  the  consequences  in  case  his 
receiver's  receipt  should  be  canceled. — Swigart  v. 
Walker,  30  Pac.  162.  In  Murray  v.  Polglase,  59  Pac. 
440,  the  Receiver's  receipt  had  been  set  aside  for 
fraud,  the  annual  labor  not  kept  up  and  there  had 
been  a  relocation.  Held  that  the  claim  was  lost  to 
the  entryman. 

Time  During  Which  Labor  Must  Be  Completed. 

On  all  lodes  located  before  or  since  May  10,  1872, 
the  year  for  doing  the  labor  is  each  year  of  our  Lord, 
beginning  January  1st,  and  ending  December  31st, 


ANNUAL  LABOR.  93 

always  noting  that  since  the  Act  of  1880  no  annual 
labor  is  required  during  the  year  the  location  is 
made. — Hall  v.  Hale,  8  Colo.  351;  McGinnis  v.  Egbert, 
15  M.  R.  329.  But  a  district  rule  or  Statute  may  im- 
pose conditions  which  imply  expenditure  during  the 
location  year. — Northmore  v.  Simmons,  97  Fed.  387. 

Each  Annual  Period  An  Entirety. 

The  owner  has  the  whole  of  each  year  to  do  his 
$100  worth  of  work  or  make  his  $100  worth  of  im- 
provements.— BelJc  v.  Meagher,  I  M.  R.  522;  Atkins  v. 
Hendree,  2  M.  R.  328;  Mills  v.  Fletcher,  34  Pac.  637. 

It  therefore  follows  that  if,  for  instance,  he  has 
expended  $100  during  the  first  m'onth  of  the  first  year 
he  may  wait  until  the  twelfth  month  of  the  second 
year  before  he  does  his  second  year's  work.  That 
such  is  the  law  admits  of  no  doubt  upon  the  reading 
of  the  Act.  At  the  same  time  the  disposition  to  take 
advantage  of  this  fact  leads  to  delays  which  often 
ultimate  in  allowing  the  whole  time  to  pass  by  and 
the  claim  to  become  liable  to  relocation. 

What  Counts  for  Improvements. 

Any  work  done  for  the  purpose  of  discovering 
minerals  is  improvements  within  the  spirit  of  the 
statute. — U.  8.  v.  Iron-Silver  Co.  24  Fed.  568.  Road 
building  counted  as  annual  labor. — Doherty  v.  Mor- 
ris, 28  Pao.  85;  Mt.  Diablo  Co.  v.  Callison,  9  M.  R.  616. 
Flumes,  drains  or  the  turning  of  a  stream  or  the 
sinking  of  a  common  shaft  will  count. — St.  Louis  Co. 
v.  Kemp,  11  M.  R.  692. 

Watchman. 

Where  a  mine  is  idle,  the  time  and  labor  of  a 
watchman  or  custodian  may  be  treated  as  annual 
labor. — Lockhart  v.  Rollins,  16  M.  R.  16;  Altoona  Co. 
v.  Integral  Co.  45  Pac.  1047;  Tripp  v.  Dunphy,  28 
L.  D.  14. 


94  ANNUAL  LABOR. 

What  Will  Not  Count. 

A  house  for  the  use  of  the  miners  built  200 
feet  away  from  the  claim  cannot  be.  considered 
as  annual  labor. — Remmington  v.  Bandit,  9  Pac.  819. 

The  expense  of  taking  timbers,  lumber,  bucket, 
rope  and  tools  to  the  mine — all  carried  away  after 
slight  use,  if  used  at  all — will  not  avail  for  annual 
labor.— Honaker  v.  Martin,  27  Pac.  397. 

Dumping  tailings  on  a  claim  is  no  improve- 
ment.— Jackson  v.  Roby,  109  U.  S.  440.  Traveling 
and  expenses  in  getting  ready  to  go  to  work  cannot 
be  considered. — McGarrity  v.  Byington,  2  M.  R.  311; 
DuPrat  v.  James,  15 \  M.  R.  341.  Nor  work  done  by 
third  parties  and  bought  in. — Little  Gunnell  Go.  v. 
Kimber,  1  M.  R.  536. 

Taking  specimens  for  assays  will  not  count  for 
annual  labor  nor  as  a  legitimate  resumption  of 
work. — Bishop  v.  Baisley,  41  Pac.  936. 

Work  Done  Outside  of  Claim  or  on  Group. 

Work  done  beyond  the  lines  will  count  when 
it  has  direct  reference  to  the  drainage  or  develop- 
ment of  the  claim. — Packer  v.  Heaton,  4  M.  R.  447; 
Kramer  v.  Settle,  9  M.  R.  561;  Mt.  Diablo  Go.  v.  Gal- 
lison,  Id.  616;  Klopenstine  v.  Hays,  57  Pac.  712;  17 
L.  D.  190.  Whether  the  work  done  on  one  is  really 
for  the  benefit  of  the  group  is  for  the  jury  to  say. — 
Wilson  v.  Triumph  Go.  56  Pac.  300;  Yreka  Go.  v. 
Knight,  65  Pac.  1092.  Where  sundry  claims  are 
worked  together  as  one  group,  the  development  work 
though  confined  to  a  single  claim,  may  count  for 
all. — Chambers  v.  Harrington,  111  U.  S.  350;  Jupi- 
ter Go.  v.  Bodie  Go.  4  M.  R.  413;  St.  Louis  Go.  v. 
Kemp,  11  M.  R.  692;  DeNoon  v.  Morrision,  16  M.  R. 
33;  23  L.  D.  267. 

The  claims  must  be  contiguous  to  allow  work 
done  on  one  to  count  for  another. — Gird  v.  Califor- 
nia Oil  Go.  60  Fed.  531;  17  M.  R.  ;  Royston  v. 
Miller,  76  Fed.  50. 


ANNUAL  LABOR.  95 

The  work  may  be  done  on  an  adjoining  pat- 
ented claim  but  when  done  outside  the  bounds  of 
the  claim  intended  to  be  protected,  the  burden  of 
proof  is  on  the  party  asserting  that  it  was  for  the 
benefit  of  such  claim  and  was  done  as  annual  labor 
for  the  protection  of  such  claim. — Hall  v.  Kearny, 
18  Colo.  505;  17  M.  R.  ... ;  Sherlock  v.  Leighton,  63 
Pac.  580 

Diverse  Ownerships  in  Group  or  in  Tunnel. 

Work  done  by  tunnel  intended  to  cut  two  claims 
owned  by  the  same  person  is  good  to  hold  both. — 
Book  v.  Justice  Co.  58  Fed.  101.  Work  done  on  one 
of  a  group  held  in  different  names  but  really  owned 
in  common  has  been  ruled  to  avail  for  all. — Eberle 
v.  Carmichael,  42  Pac.  95.  And  we  see  no  reason 
why  a  tunnel  owned  in  common  and  worked  by  the 
joint  labor  or  contributions  of  the  several  owners 
of  different  claims  intended  to  be  cut  by  such  tun- 
nel should  not  avail  to  protect  each  claim  provided 
the  full  $100  is  expended  for  each  claim. — Fissure 
Co.  v.  Old  Susan  Co.  63  Pac.  587. 

Annual  Labor  by  Tunnel. 

See  TUNNEL  SITES. 

Amount,  How  Estimated — District  Rules. 

As  to  such  district  rules  as  attempt  to  fix  the 
value  of  a  day's  labor  above  its  real  cost  in  esti- 
mating the  amount  of  work  done,  they  amount  to 
absolutely  nothing.  The  "fiat"  does  not  alter  the 
"fact."  The  true  measure  is  the  real  expenditure. — 
Wright  v.  Killian,  64  Pac.  98;  Penn  v.  Old- 
hauler  61  Pac.  649;  Woody  v.  Barnard,  65 
S.  W.  100.  And  if  the  work  has  been  done,  or 
the  materials  furnished  by  the  owner  himself,  the 
measure  of  value  is  what  it  would  have  cost  to 
procure  the  same  labor  and  materials  from  a  sec- 
ond party.  In  other  words,  the  market  value  of 
the  labor  and  materials. — Quim'by  v$.  Boyd,  8  Colo. 
194,  342.  And  its  enhancing  the  value  of  the  claim 
is  no  test. — Mattingly  v.  Lewisohn,  35  Pac.  111. 


96  ANNUAL,  LABOR. 

The  Fact  That  the  Work  Has  Not  Yet  Been  Paid 

for  does  not  invalidate  its  sufficiency  to  count 
as  annual  labor. — Lockhart  v.  Rollins,  16  M.  R.  16; 
Coleman  v.  Curtis,  30  Pac.  266. 

Rightful  Owner  Out  of  Possession. 

Where  possession  is  wrongfully  taken  and  with- 
held, the  rightful  owner  is  excused  from  the  neces- 
sity of  doing  the  work. — Utah  Co.  v.  Dickert  Co.  21 
Pac.  1002;  Slavonian  Co.  v.  Perasich,  1  M.  R.  541; 
Mills  v.  Fletcher,  34  Pac.  637;  Trevaskis  v.  Pear  a, 
44  Pac.  246. 

Performance  of  Annual  Labor  After  the  Year  Has 

Expired — Two  Parties  Essential  to  Forfeiture. 

The  neglect  to  do  the  annual  labor  required  by 
the  United  States  government  by  no  means  works 
a  forfeiture  of  the  claim. — Lakin  v.  Sierra  Buttes  Co. 
25  Fed.  343;  Lacey  v.  Woodward,  25  Pac.  785.  To 
illustrate:  If  a  lode  was  located  in  1890  and  after 
that  year  no  annual  work  was  done  until  1896 
(when  a  period  of  five  full  years  would  have  in- 
tervened), and  in  1896  the  owner  enters  and  per- 
forms his  $100  worth  of  work  for  that  year,  he  con- 
tinues to  be  the  owner  of  the  claim,  and  his  title 
relates  back  to  the  original  location  of  1890;  pro- 
vided always,  that  the  lode  has  not  been  relocated 
in  the  meantime. 

It  requires  two  parties  to  make  a  forfeiture  ab- 
solute: First,  the  party  who  abandons,  and  sec- 
ond, the  party  who  relocates.  The  second  party 
therefore  must  take  advantage  of  the  first  party's 
default  before  such  default  can  enure  to  the  sec- 
ond party's  benefit. — Little  Gunnell  Co.  v.  Kimber, 
1  M.  R.  536;  Beals  v.  Cone,  62  Pac.  948. 

The  fact  that  failure  to  do  the  work  does  not 
ipso  facto  work  a  forfeiture  and  the  fact  that  ad- 
vantage of  the  default  must  be  taken  by  some  ad- 
verse party  is  important  in  several  classes  of  cases. 

First — Where  the  work  done  before  the  neglect, 
is  necessary  to  complete  the  $500  worth  of  improve- 
ments required  before  patenting. 


ANNUAL  LABOR.  97 

Second — Where  in  cases  of  ejectment  between 
two  claims  it  is  necessary  to  prove  priority  and 
carry  the  title  back  to  the  original  location. 

Third — Where  a  party  has  neglected  to  do  his 
annual  work  and  a  third  party  has  entered  for  pur- 
pose of  relocation. 

Fourth — The  fact  that  neglect  to  do  one  or  more 
years'  labor  does  not,  ipso  facto,  operate  as  a  for- 
feiture, is  of  special  importance  in  the  case  of  over- 
lapping claims,  ;where  the  junior  claim  has  been 
worked  and  the  senior  claim  has  not  been  worked. 

1.  Where  the  Work  Done  Before  the  Neglect,  is 
necessary   to    complete    the   $500   worth   of    im- 
provements required  before  patenting.     If  failure  to 
do  one  year's  work  operates,  ipso  facto,  to  defeat  the 
location,  in  such  case  the  title  would  have  to  date 
from  the  date  of  resumption;  in  fact,  a  new  location 
would  have  to  be  made  by  the  owner.    But  the  failure 
not  having  been  in  due  time  taken  advantage  of,  the 
old  title  remains,  dates  from  original  discovery,  and 
consequently   old   work  and   new   count  together   as 
improvements  on  the  claim  for  purposes  of  patenting. 

2.  Where  It  is  Essential  to  Carry  the  Title  Back 
to  Discovery. 

The  remarks  of  the  foregoing  paragraph  apply 
also  to  this  heading.  The  doctrine  of  relation  car- 
ries a  title  back  to  the  first  step  in  its  inception, 
always  excepting  where  an  adverse  right  has  inter- 
vened. As  the  failure  of  itself  works  no  forfeiture, 
the  continuity  in  this  case  is  not  broken.  A  loca- 
tion, however,  made  over  a  claim  where  the  work 
has  not  been  done  (before  bona  fide  resumption  by 
the  owner)  would  break  this  continuity  and  would 
take  the  conflict,  whether  it  purported  to  be  a  re- 
location of  the  defaulting  claim  or  only  incidentally 
took  some  of  its  ground. 

There  is  a  dictum  in  Klopenstine  v.  Hays,  51 
Pac.  712,  that  if  work  is  resumed  by  the  original 
owner  after  failure  to  do  work  for  a  certain  year 


98  ANNUAL  LABOR. 

and  after  a  valid  relocation  by  a  second  party  who 
also  failed  to  keep  up  his  work,  that  such  resump- 
tion by  the  original  owner  revives  the  original  title. 
It  may  be  that  in  such  circumstance  the  original 
owner  may  not  be  required  to  go  through  the  form 
of  a  new  location  and  record;  but  that  his  title 
would  go  back  by  relation  beyond  the  point  of  time 
when  a  valid  possessory  title  to  the  same  ground 
existed  in  a  third  party  is  an  extremely  doubtful 
proposition. 

3.     Where  a  Third  Party  Has  Entered  for  Pur- 
pose of  Relocation. 

The  words  of  the  Act  relative  to  the  latter  class 
of  cases  are  as  follows: 

"Provided  that  the  original  locators,  their  heirs,  as- 
signs, or  legal  representatives,  have  not  resumed  work  upon 
the  claim  after  failure  and  before  such  location." 

If  this  location  of  the  third  party  is  complete  be- 
fore the  re-entry  of  the  original  owner,  of  course  the 
original  owner  is  too  late.  If,  on  the  other  hand,  the 
original  owner  has  bona  fide  resumed  work  before 
the  attempted  location  over  his  ground,  his  original 
title  becomes  revested  the  moment  he  has  completed 
an  amount  of  work  equivalent  to  that  required  for 
the  previous  year.  But  where  the  third  party  has 
entered,  and  before  he  completes  his  location,  the 
original  owner  also  enters  and  resumes  work,  the 
question  remains:  Is  such  re-entry  of  the  owner  suf- 
ficient to  defeat  the  intervening  claimant?  The  Act 
says  that  the  owner  may  resume  work  at  any  time 
"before  such  location."  The  location  of  the  inter- 
venor  is  not  complete  until  he  has  done  a  series  of 
acts,  usually  requiring  several  days  to  consummate. 
The  locator  must  sink  a  shaft  ten  feet  in  depth,  and 
set  his  stakes.  In  the  meantime  has  the  original 
owner  the  right  to  resume  work?  It  was  so  decided 
in  the  case  of  Pharis  v.  Muldoon,  15  M.  R.  348.  There, 
however,  the  relocator  had  entered  and  posted  his  no- 
tice just  after  midnight  of  the  last  day  of  the  year 


ANNUAL,  LABOR.  99 

and  the  original  owner  resumed  work  by  the  usual 
hour  for  honest  labor  on  the  morning  of  the  first. 
The  relocator  had  barely  a  technical  case,  if  any. 
In  another  instance,  on  facts  much  stronger  for  the 
second  party  (G-onu  v.  Russell,  12  M.  R.  630),  it  was 
distinctly  held  that  the  re-entry  of  the  original 
owner  before  the  newcomer's  location  was  complete, 
would  save  the  forfeiture.  The  same  court  reaffirms 
this  ruling  in  McKay  v.  McDougall,  64  Pac.  669. 

On  the  contrary,  HALLETT,  J.,  in  the  case  of  Lit- 
tle Gunnell  Co.  v.  Kimber,  1  M.  R.  536,  held  that  the 
party  attempting  to  take  up  abandoned  property  has 
the  same  period  of  three  months  to  complete  his  lo- 
cation, which  is  allowed  by  law  to  a  discoverer;  and 
Pelican  Go.  v.  Snodgrass,  9  Colo.  339,  is  to  the  same 
effect. 

I  have  'little  doubt  of  the  correctness  of  the  lat- 
ter opinion.  "The  condition  of  development  should 
be  attached  to  every  mine;  and  courts  should,  as  far 
as  consistent  with  legal  principles,  maintain  the  con- 
struction of  mining  customs  which  accomplish  this 
end." — King  v.  Edwards,  4  M.  R.  480;  Russell  v. 
Brosseau,  65  Cal.  605. 

In  Belcher  Co.  v.  Deferrari,  62  Cal.  160,  the  plain- 
tiff, the  original  owner,  did  only  one-half  the  re- 
quired amount  in  1880.  In  January,  1881,  he  did  $24 
worth  of  work  on  two  claims.  Defendant  relocated 
in  August,  1881.  Held,  that  the  plaintiff  had  resumed 
work  and  was  entitled  to  recover.  Such  a  decision 
is  only  trifling  with  the  law  and  the  rights  of  parties 
based  on  the  law.  On  a  case  of  like  facts  the  con- 
trary has  since  been  held  by  the  same  court. — Mc- 
CormicTc  v.  Baldwin,  37  Pac.  903. 

In  the  well  considered  opinion  in  HonaTcer  v. 
Martin  (Mont),  27  Pac.  397,  the  cases  on  this  subject 
are  reviewed  by  BLAKE,  C.  J.,  and  it  was  decided  that 
where  a  resumption  takes  place  it  must  be  substan- 
tial, and  result  in  the  prompt  performance  of  at  least 
the  full  amount  which  should  have  been  done  the 


100  ANNUAL,  LABOR. 

previous  year.  It  does  not  decide  in  terms  as  in  the 
Pelican  case  and  Gunnell  case,  that  the  resumption  is 
too  late  when  the  first  act  of  relocation  has  been 
initiated,  but  it  bears  out  the  argument  to  the  same 
result. 

The  owners  of  the  Nellie  were  on  the  ground 
December  31,  and  resumed  work  on  January  1.  The 
same  day  the  Equator  was  located  over  this  ground. 
The  Court  held  that  such  location  could  not  be  in- 
itiated while  the  ground  still  remained  unforfeited, 
the  owners  having  renewed  the  work,  though  they 
afterwards  failed  to  complete  the  full  assessment— 
Jordan  v.  Duke,  53  Pac.  191. 

Sharpening  tools  off  the  claim  does  not  count  for 
work:  Labor  when  resumed  must  be  prosecuted  with 
reasonable  diligence  till  the  $100  is  complete.— 
Hirschler  v.  McKendricJcs,  40  Pac.  290. 

4.     Work  Neglected  on  Senior  Claim  Overlapped 
by  Junior  Claim. 

This  does  not  transfer  the  title  of  the  overlap- 
ping portion  from  the  senior  to  the  junior  claim,  un- 
less the  junior  lode  makes  its  relocation,  taking  up 
the  overlapping  ground.  This  it  may  do  in  Colorado 
as  specially  provided  in  M.  A.  S.  Sec.  3160  by  the 
clause: 

"If    at    any    time    the    locator    of     any     mining     claim 

*  *      *     *     shall    be   desirous     *      *      *     of   taking  in   any 
part   of   an   over-lapping   claim   which   has   been   abandoned, 

*  *     *     such  locator,  or  his  assigns,  may  file  an  additional 
certificate"      *     *      * 

the  same  as  provided  for  in  other  cases  of  relocation 
by  the  same  section. 

This  section  has  been  construed  in  0 scamp  v. 
Crystal  R.  Co.  58  Fed.  233,  holding  that  the  inter- 
ference does  not  come  to  the  junior  claim  without  fil- 
ing the  certificate.  We  consider  the  statute  also,  as 
only  declaratory  of  the  rights  of  the  junior  claim  and 
that  such  certificate  would  operate  to  the  same  effect, 
to  wit:  as  a  claim  to  or  relocation  of  such  overlap- 


ANNUAL  LABOR.  101 

ping  abandoned   ground    in   States    and   Territories 
where  no  such  statute  exists. 

The  Relocator  No  Trespasser. 

When  the  year  has  expired  and  the  work  has 
not  been  done  a  third  party  has'  the  right  to  enter 
within  its  boundaries  and  relocate  the  claim,  al- 
though the  original  owner  be  still  (constructively) 
in  possession. — DuPrat  v.  James,  15  M.  R.  841. 

A  Relocation  Begun  Before  the  Year  Expires  Is 

void. — Belk  v.  Meagher,  1  M.  R.  522.  The  case  cited 
so  decides,  but  it  would  certainly  seem  that  if  the 
.party  whose  claim  was  taken  did  not  either  resume 
work  or  take  steps  to  recover  by  law  until  after  the 
expiration  of  the  ensuing  annual  period  that  his 
laches  would  operate  to  validate  such  a  relocation, 
although  begun  before  the  proper  time. 

Equity  of  the  Annual  Labor  Law. 

The  opposition  to  the  requirement  of  annual  la- 
bor so  evident  when  first  required  by  the  Act  of 
1872  has  gradually  yielded  to  a  concession  of  its 
equity  even  in  the  case  of  claims  located  before  its 
passage. 

The  holder  has  no  just  right  to  prevent  the  gov- 
ernment disposing  of  such  claims  as  he  is  unwilling 
or  unable  to1  work,  to  such  as  are  ready  to  assume  the 
risk  and  develop  the  deposit,  the  estate  of  the  holder 
not  being  absolute,  but  by  implied  contract  and  gen- 
eral mining  custom  conditioned  upon  development; 
of  which  development  the  Government  has  merely 
fixed  the  amount  by  the  Act  of  1872,  and  that  at  a 
reasonable  limit. 

Development  is  the  condition  upon  which  the 
Government  allows  the  miner  to  hold  his  possessory 
title  and  afterwards  perfect  it  by  patent. — Erhardt 
v.  Boaro,  15  M.  R.  472;  O'Reilly  v.  Campbell,  116  U. 
S.  418;  Kramer  v.  Settle,  9  M.  R.  561.  Nevertheless 
the  Act  is  to  be  strictly  construed  against  forfeiture. 
— Emerson  v.  McWhirter,  65  Pac.  1036. 


102  ANNUAL  LABOR. 

Pleading. 

The  failure  to  do  the  annual  labor  must  be  spe- 
cially pleaded;  Renshaw  v.  Switzer,  15  M.  R.  345. 
The  later  location  must  plead  a  failure  to  do  the 
work,  a  consequent  forfeiture  and  that  the  second 
location  thereupon  was  made  upon  the  ground. — 
Bishop  v.  Baisley,  41  Pac.  936.  The  general  rule  in 
such  cases  that  forfeiture  must  be  plead  specially  is 
found  in  Morenhaut  v.  Wilson,  1  M.  R.  53;  and  the 
principle  is  supported  by  the  inference  as  to  strict- 
ness in  such  cases  required.  The  annual  labor  need 
not  be  proved  if  no  issue  is  raised  on  it. — Mattingly 
v.  Lewisohn,  35  Pac.  111.  Forfeiture  when  material 
must  be  strictly  proved. — Mt.  Diablo  Co.  v.  Callison, 
9  M.  R.  017;  Colman  v.  Clements,  5  M.  R.  247. 

On  the  other  hand,  the  Supreme  Court  of  Ne- 
vada holds  that  in  an  adverse  claim  suit,  where  the 
direct  issue  is:  which  is  the  better  claim?  It  mat- 
ters not  that  the  title  of  one  be  founded  on  a  for- 
feiture, and  such  fact  need  not  be  specially  pleaded. — 
Steel  v.  Gold  Co.  15  M.  R.  292.  No  rules  of  pleading 
would  be  required  at  all,  if  the  issue  in  every  case 
were  reduced  to  this  simplicity:  which  party  ought 
to  prevail? 

The  Burden  of  Proof  is  upon  the  party  asserting 
that  the  work  was  not  done. — Quigley  v.  Gillett,  35 
Pac.  1040;  Hall  v.  Kearny,  18  Colo.  505;  17  M.  R.  ..; 
Harris  v.  Kellogg,  49  Pac.  708;  Axiom  Co.  v.  White, 
72  N.  W.  462;  Beals  v.  Cone,  62  Pac.  948.  And  the 
proof  should  be  clear  and  convincing. — Strasburger 
v.  Beecher,  49  Pac.  740;  Dibble  v.  Castle  Chief  Co. 
70  N.  W.  1055;  Crown  Point  Co.  v.  Crismon,  65  Pac. 
87.  As  to  burden  of  proof  when  the  work  was  done 
outside  the  claim,  see  p.  95. 

On  Rebuttal  the  other  side  may  show  that  the 
work  did  not  benefit  the  claim.  But  the  work  done 
need  not  be  that  which  would  be  most  beneficial 
to  the  claim. — Sherlock  v.  Leighton.  63  Pac.  580. 


ANNUAL  LABOR.  103 

Proof  of  Annual  Labor. 

M.  A.  S.  Sec.  3161. — Within  six  months  after  any  set 
time  or  annual  period  allowed  for  the  performance  of  labor 
or  making  improvements  upon  any  lode  claim  or  placer 
claim,  the  person  on  whose  behalf  such  outlay  was  made, 
or  some  person  for  him,  may  make  and  record  in  the 
office  of  the  recorder  of  the  county  wherein  such  claim  is 
situate,  an  affidavit  in  substance  as  follows : 
STATE  OF  COLORADO, County:  ss. 

Before      me,      the      subscriber,      personally      appeared 

,   who,    being   duly   sworn,   saith   that   at   least 

dollars'  worth  of  work  or  improvements  were 

performed   or   made   upon    (here   describe   claim    or   part    of 

claim),  situate  in mining  district,  county  of 

State  of  Colorado,  between  the day  of , 

A.   D ,  and  the    day  of   , 

A.  D Such  expenditure  was  made  by  or  at 

the  expense  of ,  owners  of  said  claim,  for 

the  purpose   of  complying   with   the   law,    and   holding  said 
claim. 

Jurat:  (Signature) —  — . 

Affidavit  Prima  Facie  Evidence. 

And  such  affidavit  when  so  recorded  shall  be  prima 
facie  evidence  of  the  performance  of  such  labor  or  the  mak- 
ing of  such  improvements  ;  Provided,  That  all  affidavits  of 
labor  or  improvements  upon  placer  claims  heretofore  filed 
and  recorded  within  the  period  prescribed  in  this  section, 
or  within  the  period  prescribed  in  section  *twenty-four  hun- 
dred and  ten  of  the  General  Statutes,  which  shall  contain 
in  substance  the  requirements  of  the  affidavit  prescribed  by 
this  section  or  said  section  twenty-four  hundred  and  ten, 
shall  be  prima  facie  evidence  of  the  performance  of  such 
labor  or  the  making  of  such  improvements  ;  and  the  original 
thereof,  or  a  certified  copy  of  the  record  of  the  same,  shall 
be  received  as  evidence  accordingly  by  the  courts  of  this 
State,  and  this  class  of  evidence  shall  be  receivable,  where 
relevant  or  material,  in  all  cases,  whether  now  pending  or 
hereafter  brought. — April  20,  1889. 

The  above  Act  is  a  re-enactment  of  Sec.  15  of  the 
Act  of  1874,  amended  in  1887  to  include  placers  and 
again  in  1889  as  above  printed  by  adding  the  words 
after  "Provided"  Its  object  is  to  provide  a  convenient 
method  of  preserving  proof  of  the  labor  performed  by 
making  the  affidavit  prima  facie  evidence  of  the  fact. 
—Coleman  v.  Curtis,  30  Pac.  266. 

*M.  A.  S.  Sec.  3161  was  Sec.  2410  of  the  General  Slat 
utes  of  Colorado. 


104  ANNUAL  LABOR. 

Like  acts  exist  in  most  of  the  other  States  and 
Territories,  the  time  for  filing  the  certificate  being: 
in  Arizona  within  three  months;  California  and  Wash- 
ington within  30  days;  Idaho  and  New, Mexico  within 
60  days  after  the  period  allowed  for  performance.  In 
Montana  20  days,  Nevada  and  Wyoming  60  days,  Utah 
30  days  after  completion  of  work. 

Failure  to  File  Affidavit  of  Labor. 

The  neglect  to  file  proof  of  labor,  if  the  labor 
has  in  fact  been  done,  would  not  leave  the  lode  open 
to  relocation,  and  the  doing  of  the  labor  can  be  shown 
by  oral  testimony.— M cGinnis  v.  Egbert,  15  M.  R.  329; 
Book  v.  Justice  Co.  58  Fed.  118;  17  M.  R.  — ;  Murray 
Hill  Co.  v.  Havenor,  66  Pac.  762.  But  the  precaution 
to  file  should  by  no  means  be  neglected.  The  filing 
makes  out  the  proof  of  th3  fact  of  the  labor  being 
done,  which  might  afterwards  be  a  difficult  matter  to 
show. 

The  California  Act  of  1891  purported  to  make  the 
filing  obligatory. — Harris  v.  Kellogg,  49  Pac.  708,  and 
in  Idaho  the  failure  to  file  is  prima  facie  evidence  that 
the  work  has  not  been  done. 

The  great  objection  to  annual  labor,  with  the  pro- 
fessional mind,  is  that  it  throws  a  mining  title  upon 
constant  parol  proof,  takes  it  out  of  the  chain  of  title 
as  found  recorded,  and  makes  it  depend  upon  the  ex- 
istence of  facts  which  do  not  appear  of  record.  This 
evil  should  be  obviated  as  far  as  possible  by  precau- 
tions, such  as  are  above  suggested;  but,  after  all,  the 
result  remains,  that  no  claim  can  be  considered  se- 
cure until  a  patent  is  obtained,  and  the  title  reduced 
to  a  record  basis,  and  to  certainty. 

FORM  OF  AFFIDAVIT  OF  LABOR  PERFORMED. 

STATE  OF  COLORADO,,  Summit  County :  ss. 

Before  me,  the  subscriber,  personally  appeared  /.  P. 
Lambing,  who  being  duly  sworn,  saith  that  at  least  one 
hundred  dollars'  worth  of  work  or  improvements  were  per- 
formed or  made  upon  the  Chaos  Lode,  situate  on  Silver 
mountain,  in  Avalanche  Mining  District,  County  of  Sum- 
mit, State  of  Colorado,  between  the  first  day  of  January,  A. 
D.  1902,  and  the  thirty-first  day  of  December,  A.  D.  1902. 
Such  expenditure  was  made  by  or  at  the  expense  of  Uoltcrt 


ANNUAL  LABOR.  105 

W.  FootCj  owner  (or  one  of  the  owners)  of  said  claim,  for 
the  purpose  of  complying  with  the  law  and  holding  said 
claim.  I.  P.  LAMBING. 

Sworn  and  subscribed  before  me  this  second  day  of 
January,  A.  D.  1903.  .  James  TF.  Swisher, 

[SEAL.]  Notary  Public. 

A  single  affidavit  may  be  filed  for  the  labor  on 
several  claims. — McGinnis  v.  Egbert,  15  M.  R.  329. 
And  it  may  be  filed  before  the  year  elapses. — Id. 

Certificate  in  Lieu  of  Annual  Labor. 

In  1893  and  1894  Congress  passed  Acts  suspending 
for  each  of  those  years  the  requirements  of  §  2324 
for  annual  labor,  provided  the  claimant  recorded  a 
notice  of  his  intention  to  hold  and  work  the  claim. — 
28  St.  L.  lllf. 

The  conceded  impulse  to  these  acts  was  the  de- 
pression existing  during  those  years  but  their  wis- 
dom has  by  no  means  been  universally  acknowledged. 
They  belong,  however,  to  that  class  of  remedial  stat- 
utes which  are  to  be  liberally  construed. 

Each  of  the  Acts  required  the  record  to  be  made 
during  the  year  for  which  it  was  to  have  effect.  But 
a  certificate  filed  in  1894,  although  neither  work  was 
done  nor  certificate  filed  for  1893,  would  hold  the 
claim  if  it  had  not  been  in  the  meantime  relocated. 
The  Act  of  filing  the  certificate  provided  for  is  ac- 
cepted by  the  statute  the  same  as  the  performance  of 
the  work  and  if  filed  at  any  time  during  the  period 
allowed,  would  prevent  a  lawful  relocation  of  the 
claim  by  third  parties. 

There  can  be  no  forfeiture  for  failure  of  co-tenant 
to  contribute  his  proportion  of  expenditure  for  1893, 
when  he  has  filed  the  certificate  allowed  by  the  Act, 
even  where  the  work  had  been  done  before  the  Act 
'was  passed.  There  is  no  vested  interest  in  a  right  to 
enforce  a  penalty. — Royston  v.  Miller,  76  Fed.  50. 
When  the  Ground  Is  in  Litigation  the  court  may 
appoint  a  receiver  to  see  that  the  work  is  performed 
and  a  forfeiture  prevented. — Nevada  Co.  v.  Home 
Co.  98  Fed.  673. 


106  ANNUAL  LABOR  ON  PLACERS. 


ANNUAL  LABOR  ON  PLACERS. 


Judicial  Rulings  As  to  Labor  on  Placers. 

The  question  of  annual  labor  on  placers  is  a  curi- 
ous instance  of  the  growth  of  law  by  following  the 
first  judicial  oversight  as  a  precedent  until  the  wrong 
interpretation  is  firmly  rooted  as  the  true  one.  By  no 
fair  construction  of  the  Act  of  1872  could  it  be  ap- 
plied to  anything  except  lode  claims.  The  very 
amount  of  the  labor  was  fixed  by  the  number  of  feet 
"in  length  along  the  vein."  But  in  1876,  in  Chapman 
v.  Toy  Long,  1  M.  R.  497,  placers  were  referred  to  in- 
cidentally as  subject  to  the  labor  law.  In  Jacteson  v. 
Roby,  109  U.  8.  440,  without  argument,  the  same  dic- 
tum was  expressed.  Later,  in  Carney  v.  Arizona  Co. 
65  Gal.  40,  the  point  was  definitely  made  as  to  whether 
such  labor  was  required  on  placers,  and  the  Supreme 
Court  of  California,  basing  their  opinion  on  the  force 
of  the  general  terms  of  §  2329 — a  section  enacted  two 
years  prior  to  the  annual  labor  section — sustain  the 
affirmative  of  the  proposition.  In  Sweet  v.  Webber,  7 
Colo.  44$>  the  precedents  thus  established  were  fol- 
lowed without  any  reference  to  the  original  statute. — 
Morgan  v.  Tillotson,  15  Pac.  88. 

The  Forms  of  affidavit,  notice  and  proof  of  for- 
feiture given  for  lode  claims  will  apply  with  obvious 
alterations  to  placers. 

Void  State  Legislation. 

In  1879  the  Legislature  of  Colorado  passed  an 
Act  (M.  A.  8.  §  3137)  fixing  the  amount  of  annual, 
labor  on  placers,  altering  the  period  during  which  it 
was  to  be  performed,  and  providing  for  forfeiture  of 
the  delinquent  co-owners'  interest.  It  was  declared 
in  conflict  with  the  Congressional  Act  in  attempting 
to  lessen  the  annual  expenditure  in  Siveet  v.  Webber, 
7  Colo.  443.  It  is  obviously  so  in  its  attempt  to  inter- 


FORFEITURE  TO  CO-OWNER.  107 

fere  with  the  beginning  and  end  of  the  annual  period. 
All  the  other  provisions  of  the  section  are  superflu- 
ous where  they  agree  with  the  Act  of  Congress  and 
nugatory  where  they  conflict  with  it. 


FORFEITURE  TO  CO-OWNER. 


By  Failure  to  do  Annual  Labor — Notice. 

R.  S.  Sec.  2324.  *  *  *  — Upon  the  failure  of  any 
one  of  several  co-owners  to  contribute  his  proportion  of 
the  expenditures  required  hereby,  the  co-owners  who  have 
performed  the  labor  or  made  the  improvements  may,  at  the 
expiration  of  the  year,  give  such  delinquent  co-owner  per- 
sonal notice  in  writing  or  notice  by  publication  in  the  news- 
paper published  nearest  the  claim,  for  at  least  once  a  week 
for  ninety  days,  and  if  at  the  expiration  of  ninety  days 
after  such  notice  in  writing  or  by  publication  such  delin- 
quent should  fail  or  refuse  to  contribute  his  proportion  of 
the  expenditure  required  by  this  section,  his  interest  in  the 
claim  shall  become  the  property  of  his  co-owners  who  have 
made  the  required  expenditures. — Sec.  5,  A.  G.  May  10,  1872. 

Expenditures  in  Excess  of  the  Statutory  Amount. 

Although  one  co-owner  has  expended  more  than 
enough  to  hold  the  claim,  the  delinquent  co-owner,  to 
save  forfeiture  under  the  Act  of  Congress,  is  only 
required  to  pay  or  tender  his  proportion  of  the 
amount  which  the  law  required  to  be  expended  upon 
the  claim. 

The  recovery  of  his  proportion  of  additional  ex- 
penditures depends  upon  other  grounds,  and  is  to  be 
enforced  only  by  judicial  proceedings,  involving  the 
question  of  mining  partnership,  or  the  expressed  or 
implied  assent  of  the  co-owner  to  the  expenditure  of 
the  additional  amount. — 5  L.  0.  4;  Neuman  v.  Drei- 
furst,  9  Colo.  228;  McCord  v.  Oakland  Q.  Co.  64  Cal. 
134;  49  Am.  R.  689.  The  distinction  is  clearly  ex- 
pressed in  Holbrooke  v.  Harrington,  36  Pac.  365. 

If  There  Are  Three  Owners  and  One  Performs 

all  the  labor,  and  gives  notice  to  his  co-owners,  and 
one  of  them  pays  his  proportion  and   offers  to  pay 


108  FORFEITURE  TO  CO-OWNER. 

one-half  and  join  in  the  division  of  the  forfeited  claim 
of  the  third  party,  we  apprehend  the  second  party 
may  refuse  such  proposition.  The  forfeiture  accrues 
solely  to  him  who  has  performed  the  labor. — 31  L.  D. 

178. 

Estoppel. 

When  a  co-owner  is  delinquent,  but  the  party  who 
has  made  the  expenditure  afterwards  associates  with 
him  in  developing  the  claim,  it  would  probably  be 
considered  a  waiver  of  the  forfeiture. 

Preservation  of  Proof. 

The  presumption  in  law  is  always  against  for- 
feiture, and  the  party  who  asserts  it  must  be  pre- 
pared to  make  his  proof  in  such  case. — Turner  v. 
Sawyer,  150  U.  8.  578;  17  M.  R.  — . 

Amount  and  Place  of  Expenditure. 

Where  a  forfeiture  notice  covered  two  claims  it 
was  held  void  for  not  stating  the  "amount  of  money 
spent  upon  each  claim  nor  the  facts  which  might  ex- 
cuse expenditure  upon  each  claim." — Haynes  v.  Bris- 
coe,  67  Pac.  156.  The  clause  in  italics  we  apprehend 
refers  to  the  possible  case  of  group  work  where  the 
full  amount  might  have  been  expended  on  a  single 
claim. 

Choice  Between  Personal  Service  and  Publication. 

If  the  demand  is  made  by  personal  service  of  the 
forfeiture  notice  the  delinquent  must  comply  within 
ninety  days  from  date  of  service.  If  publication  be 
made  the  forfeiture  is  not  complete,  it  would  seem, 
until  ninety  days  after  the  last  publication. 

If  publication  be  attempted  it  cannot  be  turned 
into  personal  service  by  showing  that  copies  of  the 
paper  were  sent  to  and  received  by  the  party  in  de- 
fault.— Haynes  vs.  Briscoe,  supra. 

Nearest  Newspaper. 

As  to  what  is  the  "newspaper  published  nearest 
the  claim"  the  construction  followed  by  STEELE,  J.,  in 
Haynes  v.  Briscoe,  seems  to  be  clearly  right;  to  wit, 


FORFEITURE  TO  CO-OWNER.  109 

tliat  it  means  nearest  in  a  direct  line,  and  not  by  the 
usually  traveled  route. 

Length  of  Publication. 

Publication  for  13  weeks  was  held  sufficient  in 
Elder  v.  Horseshoe  Co.  87  N.  W.  586. 

Proceedings  to  Enforce  Forfeiture. 

In  the  first  instance  file  the  usual  affidavit  of 
labor  performed,  in  the  form  given  on  page  104. 

FORFEITURE    NOTICE.        (A) 

GEORGETOWN,  COLO.,  January  3,  1903. 
To  Robert  H.   Tinker: 

You  are  hereby  notified  that  I  have  expended  during 
the  year  1902  one  hundred  dollars  in  labor  and  improve- 
ments upon  the  Corinne  Lode  Mining  Claim,  situate  on  Re- 
publican Mountain  in  Griffith  Mining  District,  County  of 
Clear  Creels,  State  of  Colorado,  the  location  certificate  of 
which  is  found  of  record  in  book  20,  'page  222,  in  the  office 
of  the  recorder  of  said  county,  in  order  to  hold  said  claim 
under  the  provisions  of  section  2324  of  the  Revised  Stat- 
utes of  the  United  States,  and  the  amendment  thereto  ap- 
proved January  22,  1880,  concerning  annual  labor  upon  min- 
ing claims,  being  the  amount  required  to  hold  said  lode  for 
the  period  ending  on  the  31st  day  of  December,  A.  D.  1902. 
And  if,  within  ninety  days  from  the  personal  service  of  this 
notice,  or  within  ninety  days  after  the  publication  thereof, 
you  fail  or  refuse  to  contribute  your  proportion  of  such  ex- 
penditure as  a  co-owner,  which  amounts  to  fifty  dollars,  your 
interest  in  the  claim  will  become  the  property  of  the  sub- 
scriber, your  co-owner  who  has  made  the  required  expendi- 
ture, by  the  terms  of  said  section. 

JAMES   H.   PERSIIING. 

If  the  demand  contained  in  this  Forfeiture  Notice 
is  not  complied  with,  within  the  prescribed  period,  it 
should  be  recorded  after  making  proof  of  its  service 
or  publication,  which  can  be  most  readily  done  by 
endorsement  upon  the  Notice  "A"  as  follows: 

PROOF  OF  FORFEITURE.       (B) 

Where  the  Forfeiture  Notice  has  been  personally  served. 
STATE  OF  COLORADO,  County  of  Clear  Creek:  ss. 

James  H.  Pershing,  being  duly  sworn,  saith,  that  he 
served  the  within  forfeiture  notice  upon  Robert  H.  Tinker, 
the  delinquent  co-owner  therein  named,  upon  the  17th  day 
of  March  A.  D.  1903,  at  said  county,  by  delivering  to  him 


110  FORFEITURE  TO  CO-OWNER. 

a  true  copy  of  the  same  and  explaining  the  contents  thereof  ; 
and  that  said  Robert  H.  Tinker  wholly  failed  to  comply  with 
the  demand  contained  in  said  notice  or  to  pay  or  tender 
his  proportion  of  said  expenditures  during  the  period  of 
ninety  days  after  said  date  or  at  any  time  since  hitherto. 

JAMES  H.  PERSHING. 

Sworn  and  subscribed  before  me  this  second  day  of 
July,  A.  D.  1903.  John  Tomay, 

[SEAL.]  Notary  Public. 

The  above  form  completes  the  proceeding  where 
the  notice  has  been  personally  served,  but  where  it 
has  been  by  publication,  discard  the  form  "B"  and 
use  the  following  "C"  and  "D." 

ruBLi SHER'S  PROOF  OF  FORFEITURE,      (c) 

STATE  OF  COLORADO,  County  of  Clear  Creek:  ss. 
(Copy  of  Notice  "A"  Attached.} 

S.  E.  Wirt,  being  duly  sworn  saith,  that  he  is  the 
publisher  of  the  Clear  Creek  Topics,  a  weekly  newspaper 
published  in  said  County,  and  that  said  Clear  Creek  Topics 
is  the  newspaper  published  nearest  to  said  Corinne  Lode 
Claim,  and  that  the  above  notice  was  published  in  said  pa- 
per fourteen  successive  weeks,  the  first  publication  appear- 
ing in  the  issue  of  January  6,  1903,  and  the  last  publication 
in  the  issue  of  April  7,  1903. 

S.  E.  WIRT. 

Sworn  and  subscribed  before  me  this  ninth  day  of 
April,  A.  D.  1903.  John  Tomay, 

[SEAL.]  Notary  Public. 

Upon  the  publisher's  proof  (C),  the  party  who 
has  done  the  work  will  endorse  his  affidavit  of  non- 
payment as  follows: 

AFFIDAVIT    OF    NON-PAYMENT.        (D) 

STATE  OF  COLORADO,  County  of  Clear  Creek:  ss. 

James  H.  Pershing,  being  duly  sworn  saith  that  Rob- 
ert H.  Tinker,  the  person  named  in  the  forfeiture  notice  at- 
tached to  the  within  proof  of  publication,  wholly  failed  to 
comply  with  the  demand  contained  in  said  notice  or  to  pay 
or  tender  his  proportion  of  said  expenditures,  during  the 
period  of  said  notice  or  within  ninety  days  thereafter,  or  at 
any  time.  JAMES  H.  PERSHING. 

Sworn  and  subscribed  before  me  this  tenth  day  of 
July,  A.  D.  1903.  John  Tomay, 

[SEAL.]  Notary  Public. 


FORFEITURE  TO  CO-OWNER.  Ill 

These  forms  "A"  and  "B,"  in  cases  of  personal 
service,  and  "A,"  "C"  and  "D"  in  cases  of  advertise- 
ment, complete  the  forfeiture  and  place  its  proof  in 
a  shape  where  it  is  recognized  in  all  land  office  pro- 
ceedings as  the  equivalent  of  a  deed  from  the  delin- 
quent party;  but  when  the  forfeiture  has  to  be  proved 
in  court,  these  ex  parte  proceedings  would  not  be  rec- 
ognized, except  the  publisher's  proof  (if  this  proceed- 
ing can  be  considered  as  an  advertisement  required 
by  law)  which  is  in  Colorado  made  evidence  by  stat- 
ute, M.  A.  S.  §  1753.  Similar  procedure  for  proof  of 
statutory  publication  is  provided  by  statutes  gen- 
erally. 

The  forfeiting  party  is  not  bound  by  law  to  make 
record  proof  of  the  forfeiture  except  as  it  may  be 
required  by  the  practice  of  the  Land  Office. — Riste  v. 
Morton,  49  Pac.  656. 

Minor  Heirs — Grouping  Notice. 

In  Elder  v.  Horseshoe  Co.  70  N.  W.  1060,  it  was 
held  that  the  failure  of  a  co-tenant  to  pay  for  his 
share  of  the  work  was  a  breach  of  the  condition  under 
which  he  held  title;  that  there  was  no  saving  of 
the  rights  of  minor  heirs;  that  a  notice  of  forfeiture 
for  several  consecutive  years  was  valid  and  that  it 
was  optional  to  serve  personal  or  publi&h  a  printed 
notice  of  forfeiture. 

A  Party  Not  a  Co-Tenant  at  Time  of  Notice 
cannot  be  deprived  of  an  after  acquired  title  by  such 
notice.  Even  a  patent  procured  by  the  forfeiting 
title  will  stand  to  the  use  of  such  party. — Turner  v. 
Sawyer,  150  U.  S.  578;  17  M.  R.  — . 

The  attempted  forfeiture  is  a  void  proceeding 
where  his  share  of  work  has  been  in  fact  done  by 
the  co-tenant  alleged  to  be  in  default. — Brundy  v. 
May  field,  38  Pac.  1067. 

It  has  been  held  that  the  regularity  of  the  for- 
feiture cannot  be  questioned  by  third  parties  repre- 
senting a  title  hostile  to  the  claim  where  the  alleged 
forfeiture  to  co-owner  was  asserted. — Becker  v.  Pugti, 
17  Colo.  243. 


112  RELOCATION  OF  CLAIMS. 


RELOCATION  OF  ABANDONED  CLAIMS. 


Statutory  Regulation  of  Such  Relocation. 

M.  A.  S.  Sec.  3162. — The  re-location  of  abandoned  lode- 
claiine  shall  be  by  sinking  a  new  discovery  shaft  and  fix- 
ing new  boundaries  in  the  same  manner  as  if  it  were  the  lo- 
cation of  a  new  claim  ;  or  the  re-locator  may  sink  the  orig- 
inal discovery  shaft  ten  feet  deeper  than  it  was  at  the 
time  of  abandonment,  and  erect  new  or  adopt  the  old 
boundaries,  renewing  the  posts  if  removed  or  destroyed.  In 
either  case  a  new  location  stake  shall  be  erected.  In  any 
case,  whether  the  whole  or  part  of  an  abandoned  claim  is 
taken,  the  location  certificate  may  state  that  the  whole 
or  any  part  of  the  new  location  is  located  as  abandoned  prop- 
erty.— Sec.  16,  Pel.  13,  1874 . 

The  Old  Claim  Must  First  Be  in  Default. 

This  is  the  basis  of  the  right  to  relocate. — Garthe 
v.  Hart,  15  M.  R.  492;  Lockhart  v.  Rollins,  16  M.  R.  16. 

Admits  a  Prior  Hostile  Claim. 

Where  the  record  on  its  face  purports  to  be  a  re- 
location of  the  claim  of  a  stranger,  this  amounts  to 
an  admission  that  the  old  claim  had  once  a  legal 
existence,  and  an  assertion  that  it  has  become  open 
to  forfeiture.— Wills  v.  Blain,  20  Pac.  798;  Shattuck 
v.  Costello,  68  Pac.  529.  The  burden  of  proof  is  upon 
the  relocator. — Providence  Co.  v.  Burke,  57  Pac.  641. 

Form  and  Manner  of  Relocation. 

In  the  relocation  of  abandoned  claims,  the  party 
locates  and  records  with  the  same  particularity  as 
in  making  an  original  location  or  record.  The  only 
practical  distinctions  are  that  he  may,  if  found 
standing,  adopt  the  stakes  of  the  old  claim.  And 
his  discovery  shaft  may  be  by  sinking  the  old  one 
deeper.  He  has  the  same  rights  as  an  original  dis- 
coverer, although  not  technically  a  discoverer  at  all. 
— Armstrong  v.  Lower,  15  M.  R.  631;  Pelican  Co.  v. 
Snodgrass,  9  Colo.  339. 


RELOCATION  OF  CLAIMS.  113 

It  has  been  held  that  a  relocation  cannot  be  made 
on  a  blind  working — a  drift  which  has  been  run  un- 
derground from  the  bottom  of  the  shaft  on  an  ad- 
joining claim. — Little  Gunnell  Co.  v.  Kimber,  1  M.  R. 
o36.  See  page  45- 

The  fact  of  improvements  already  on  the  ground 
does  not  lessen  the  labor  required  from  the  relocator; 
he  must  do  the  required  amount  of  sinking,  usually 
ten  feet,  on  the  old,  or  on  a  new  discovery  shaft; 
must  erect  a  new  stake,  and  unless  he  adopts  exactly 
the  old  location,  he  must  set  new  posts  or  at  all 
events  must  see  that  his  boundaries  are  established 
on  the  ground.  Where  the  old  stakes  are  taken  they 
should  be  marked  with  the  new  name. 

The  Relocator  No  Trespasser. 

A  second  party  has  a  right  to  enter  upon  ground 
although  he  knows  of  an  attempted  prior  location 
upon  it,  if  such  prior  location  be  fatally  defective. — 
Brown  v.  Oregon  Co.  110  Fed.  728;  Deeney  v.  Mineral 
Co.  67  Pac.  724. 

No  Connection  With  the  Old  Title. 

The  relocator  has  no  rights  by  relation  to  the 
date  and  priority  of  the  title  which  he  has  destroyed 
by  his  relocation. — Cheesman  v.  Shreeve,  40  Fed.  789, 
17  M.  R.  ... 

The  relocator  is  not  required  to  do  the  labor  for 
neglect  of  which  the  claim  was  forfeited,  although  a 
substantial  relocation  might  require  as  great  an  ex- 
penditure; nor  if  it  be  an  abandoned  1,600  or  3,000 
foot  claim,  can  it  be  relocated  upon  one  shaft  for 
more  than  1,500  feet.  It  is  substantially  a  new  loca- 
tion, the  same  as  if  no  former  location  or  record  had 
ever  been  made. 

Re-Entry  by  Original  Owner. 

After  the  annual  period  has  expired,  the  old 
claimant  has  still  the  first  right;  but  if  he  has  com- 
menced work  before  another  party  enters,  he  must 
complete  the  full  amount  required  with  reasonable 
diligence,  as  otherwise  the  claim  would  remain  for- 


114  RELOCATION  OP  CLAIMS. 

feit. — Honaker  v.  Martin,  27  Pac.  397.  And  after  the 
relocator  has  entered  he  has  the  right  to  maintain  his 
possession. — Morgan  v.  Tillottson,  78  Gal.  520. 

When  the  Original  Owner  Had  Begun  Work 
before  the  expiration  of  the  year  and  so  being  not 
yet  entirely  in  default  was  at  work  on  December  31st 
— an  entry  by  a  relocator  on  January  1st  (a  Sunday) 
or  on  January  2  (a  legal  holiday)  will  not  initiate  a 
valid  claim. — McNeil  v.  Pace,  3  L.  D.  267. 

Relocating  Instead  of  Resuming. 

In  WarnocJc  v.  De  Witt,  40  Pac.  205,  the  Supreme 
Court  of  Utah  decide  in  terms  that  an  owner  may 
allow  his  claim  to  be  in  default  as  to  annual  labor 
and  then  renew  his  monuments,  file  a  new  record 
and  hold  under  such  second  location.  It  cites  the 
case  of  Hunt  v.  Patchin,  35  Fed.  816,  as  upholding 
such  relocation.  This  Hunt  case  was  a  controversy 
between  co-owners  where  the  rights  of  strangers  or 
of  a  hostile  title  were  not  involved  and  does  not  jus- 
tify the  citation. 

The  law  requires  of  the  owner  to  do  a  certain 
amount  of  work  within  a  certain  period.  It  allows 
him  the  indulgence  of  retaining  his  old  title  if  he 
re-enters  and  resumes  work  either  during  such  pe- 
riod or  during  the  next  year  before  another  has  en- 
tered. To  allow  him  from  year  to  year  to  renew  his 
monuments  and  file  new  records  would  result  in 
wholly  defeating  the  intent  of  the  law.  We  think 
that  there  is  an  implied  distinction  between  his 
rights  and  the  rights  of  others  in  such  a  case.  He 
has  forfeited  the  right  to  locate  that  ground  by  virtue 
of  his  default  in  not  living  up  to  his  assumed  obliga- 
tion to  follow  up  his  location  by  labor  in  good  faith. 
The  claim  is  open  to  relocation  by  all  citizens  bar- 
ring the  one  whose  default  is  the  occasion  of  its  be- 
ing open  and  his  only  rights  are  those  conferred  on 
him  by  the  Statute  to  wit:  the  right  to  resume  and 
perform.  Mr.  Lindley  fully  coincides  with  these 
views.— 1  Lind.  §  405. 


RELOCATION  OP  CLAIMS.  115 

Relocation  After  Patent  Applied  For. 

In  South  End  M.  Co.  v.  Tinney,  35  Pac.  89,  a  lode 
had  applied  for  patent  and  completed  its  publication, 
but  considerable  delay  ensued  without  entry  and  the 
annual  labor  was  not  kept  up.  During  this  period  a 
relocation  was  made.  Afterwards  the  applicant  com- 
pleted his  entry,  but  it  was  held  that  the  relocation 
title  was  valid  and  that  the  patentee  took  the  pat- 
ent in  trust  for  the  true  owner,  the  relocator.  There 
would  seem  to  be  no  doubt  that  the  annual  labor 
must  be  kept  up  until  actual  entry,  but  whether  other 
courts  will  go  to  the  extreme  of  this  holding  is  not 
to  be  assumed.  MURPHY,  C,  J.  dissented,  as  did  BEL- 
KNAP,  J.  in  part.  See  page  92. 

In  Land  Office  proceedings  the  party  asserting  a 
relocation  must  prove  an  abandonment  of  the  orig- 
inal claim. — 21  L.  D.  219.  Or  the  original  application 
may  be  cancelled  for  laches.  See  page  J$0. 

Overlapping  Senior  Claim. 

It  has  been  held  that  the  filing  of  amended  cer- 
tificate giving  such  bounds  as  include  the  interfer- 
ence of  a  prior  survey  which  has  failed  to  have  its 
annual  labor  performed  operates  as  a  relocation  of 
such  abandoned  overlapping  area  without  specific 
mention  of  such  being  the  intent  of  the  amendment. 
— Johnson  v.  Young,  18  Colo.  625.  See  page  100. 

Relocation  of  Abandoned  Claim  by  Co-Tenant. 

Where  the  several  owners  of  a  claim  have  al- 
lowed the  annual  period  to  expire  without  doing  the 
annual  labor,  it  has  been  asserted  that  any  one  of 
them  may  enter  upon  the  ground  and  relocate  the 
claim  in  his  own  name,  leaving  out  his  former  co- 
tenants.  The  Statute  says  that  after  the  year  has 
expired  without  the  labor  being  done,  the  claim 

"Shall  be  open  to  relocation  in  the  same  manner  as  if 
no  location  of  the  same  had  ever  been  made." — R.  8.  Sec. 
2324. 

But  these  words  are  immediately  followed  by  a 
proviso  which  seems  to  make  a  distinction  between 
the  rights  of  the  old  owners  and  the  rights  of  stran- 


116  RELOCATION  OP  CLAIMS. 

gers,  and  there  is  an  inherent  distinction  arising 
from  their  joint  ownership.  It  is  certain  that  if  all 
the  owners  return  to  the  claim  their  title  would  relate 
back  to  the  original  discovery;  and  it  is  also  a  rule 
of  law  that  a  tenant  in  common  cannot  rightfully 
do  any  act  which  is  subversive  of  his  co-tenant's  title, 
and  quite  as  certain  that  if  he  were  allowed  to  relo- 
cate as  a  stranger  he  must  yield  his  prior  claim  abso- 
lutely, and  proceed  in  all  particulars  as  an  entire 
stranger. 

The  question  has  been  set  at  rest  by  repeated  de- 
cisions that  any  relocation  or  attempted  relocation 
made  by  a  co-tenant  is  for  the  benefit  of  the  common 
title  and  one  co-tenant  cannot  by  recording  in  his 
own  name  oust  his  co-tenants. — McCarthy  v.  Speed, 
77  N.  W.  590;  Yarwood  v.  Johnson,  70  Pac.  123. 

In  Saunders  v.  Mackey,  6  Pac.  361,  a  co-owner 
had  agreed  to  see  the  work  done;  he  did  not  do  it, 
and  afterwards  was  a  party  to  a  relocation.  The 
court  held  that  the  failure  operated  to  defeat  the  old 
location,  and  that  the  relocation  was  valid;  but  in- 
timated that  in  a  proper  action  the  party  who  had 
so  violated  his  agreement  would  be  declared  to  hold 
the  title  in  trust.  A  very  like  case  was  Doherty  v. 
Morris,  11  Colo.  12,  where  the  same  ruling  was  made 
and  the  breach  of  trust  not  considered  on  the  plead- 
ings. In  Royston  v.  Miller,  76  Fed.  50,  it  was  more 
broadly  held  that  a  co-tenant  so  acting  could  tako  no 
advantage  of  his  relocation.  But  it  requires  no  de- 
cision to  say  that  if  a  coowner  promise  to  do  the 
assessment  work  and  fail  so  to  do,  or  if  he  do  it  and 
deny  it  and  collude  with  a  third  party  to  relocate 
(as  was  the  fact  in  the  Morris  case}  whatever  title 
he  so  by  fraud  obtains  must  enure  to  the  good  of  the 
injured  party.  In  the  Morris  case,  the  actual  doing 
of  the  work  was  made  apparent  on  the  final  trial. — 
28  Pac.  85;  17  Colo.  105. 

The  late  case  of  Yarwood  v.  Johnson,  70  Pac.  123, 
was  much  like  the  Doherty  case  in  its  facts.  Plain- 
tiff alleged  that  defendant,  a  co-tenant,  agreed  to  do 
the  work  and  did  it.  Defendant  had  relocated  using 


RELOCATION  OP  CLAIMS.  117 

his  brother's  name,  as  soon  as  the  year  expired.  The 
Court  held  that  if  the  work  had  been  done  the  re- 
location was  void  of  course  but  they  further  broadly 
and  rightly  held  that  any  relocation  made  by  a  co- 
tenant  was  for  the  benefit  of  the  common  title. 

The  case  of  Turner  v.  Sawyer,  150  U.  8.  578;  17 
M.  R.  — ,  lays  down  the  true  principle  applicable  to 
the  case,  to  wit:  that  the  co-tenant  cannot  acquire 
and  hold  adversely  a  hostile  title  without  allowing 
right  to  co-tenant  to  pay  his  proportion  of  the  cost 
and  take  the  benefit  of  the  same,  and  that  perfecting 
patent  was  the  purchase  of  such  a  title. — Suessen- 
bach  v.  Bank,  41  N.  W.  662;  Mills  v.  Hart,  24  Colo. 
505. 

A  co-owner  attempting  to  relocate  in  his  own 
name  so  as  to  oust  his  associates  from  the  title  does 
not  abandon  his  claim  to  the  ground  nor  forfeit  by 
estoppel  the  undivided  interest  in  the  original  claim. 
—Hulst  v.  Doerstler,  75  N.  W.  270. 

Other  Instances  of  Fiduciary  Relation. 

The  owners  mortgaged  their  claim,  abstained 
from  doing  the  annual  labor,  and  after  the  year 
elapsed  relocated. — Held,  that  they  could  not  so  de- 
feat the  mortgage. — Alexander  v.  Sherman,  15  M.  R. 
638. 

The  grantor  by  quit-claim  deed  is  not  estopped 
to  relocate  when  his  vendee  fails  subsequently  to 
keep  up  his  annual  labor. — Blake  v.  Thome,  16  Pac. 
270.  For  attempted  relocation  by  vendor  after  sale 
see  Minah  Co.  v.  Briscoe,  89  Fed.  891. 

But  an  agent  or  other  party  in  a  fiduciary  capa- 
city cannot  relocate  for  his  own  benefit. — Lockhart 
'v.  Rollins,  16  M.  R.  16.  Nor  betray  the  property  to 
a  stranger. — Utah  Co.  v.  Dickert  Co.  21  Pac.  1002.  Nor 
can  a  hired  prospector  say  that  what  he  has  turned 
over  to  his  outfitter  is  his  own  by  a  prior  title. — 
Fuller  v.  Harris,  29  Fed.  81  Jt. 

Lessees  cannot  take  their  lessor's  property  by 
going  through  the  form  of  a  relocation. — Lowry  v. 
Silver  City  Co.  179  U.  8.  196. 


118  RELOCATION  OP  CLAIMS. 

Where  all  the  others  have  conveyed  to  one  co- 
tenant  for  the  purpose  of  patenting,  any  relocation 
made  by  him  counts  for  the  benefit  of  his  associates, 
including  new  ground  taken  in  by  his  relocation. — 
Hallack  v.  Tracer,  46  Pac.  110. 

A  Location  Made  by  an  Ex-Employee  is  not  void 

from  the  fact  that  his  knowledge  that  the  lode  had 
been  followed  into  vacant  ground  had  been  acquired 
while  working  for  the  owners  of  the  adjoining  pat- 
ent.— Thallmann  v.  Thomas,  111  Fed.  277. 


RELOCATION  OF  CLAIMS  NOT  ABANDONED. 


In  What  Cases  Owner  May  Relocate. 

M.  A.  S.  Sec.  3160. — If  at  any  time  the  locator  of 
any  mining  claim  heretofore  or  hereafter  located,  or  his 
assigns,  shall  apprehend  that  his  original  certificate  was 
defective,  erroneous,  or  that  the  requirements  of  the  law 
had  not  been  complied  with  before  filing,  or  shall  be  de- 
sirous of  changing  his  surface  boundaries,  or  of  taking  in 
any  part  of  an  over-lapping  claim  which  has  been  aban- 
doned, or  in  case  the  original  certificate  was  made  prior  to 
the  passage  of  this  law,  and  he  shall  be  desirous  of  secur- 
ing the  benefits  of  this  act,  such  locator,  or  his  assigns, 
may  file  an  additional  certificate,  subject  to  the  provisions 
of  this  act ;  Provided,  That  such  re-location  does  not  inter- 
fere with  the  existing  rights  of  others  at  the  time  of  such 
re-location,  and  no  such  re-location  or  other  record  thereof 
shall  preclude  the  claimant  or  claimants  from  proving  any 
such  title  or  titles  as  he  or  they  may  have  held  under  pre- 
vious location. — Sec.  13,  Pel.  13,  187',. 

This  section  provides  an  escape  from  the  conse- 
quences of  loose  and  careless  records;  it  also  gives 
the  older  claims  the  opportunity  to  take  the  full 
width  allowed  by  the  new  law;  and  further,  in  case 
a  lode  is  found  to  be  not  contained  in  the  original 
boundaries,  it  allows  the  error  to  be  corrected.  All 
former  rights  are  secured  with  the  new  privileges, 
and  greater  certainty  obtained  under  the  relocation. 
But  it  is  only  declaratory  of  the  right  which  any 
claimant  has  without  the  aid  of  any  such  statute  to 


RELOCATION  OP  CLAIMS.  119 

amend  his  own  publication  of  claim.- — Thompson  v. 
Spray,  72  Cal.  528. 

In  a  relocation  under  this  section,  the  name  of  the 
lode  should  not  ordinarily  be  changed,  and  the  cer- 
tificate should  show  that  it  is  a  relocation,  and  of 
what  lode. 

FORM   OF    CERTIFICATE   OF   RE-LOCATION. 

KNOW  ALL  MEN  BY  THESE  PRESENTS,  That  I,  Andrew 
J.  Hughes,  of  the  City  and  County  of  Denver,  State  of  Colo- 
rado, claim  by  right  of  relocation,  fifteen  hundred  feet,  linear 
and  horizontal  measurement,  on  the  Kentucky  Lode,  along 
the  vein  thereof,  with  all  its  dips,  variations  and  angles,  to- 
gether with  one  hundred  and  fifty  feet  in  width  on  each  side 
of  the  middle  of  said  vein  at  the  surface ;  and  all  veins, 
lodes,  ledges  and  surface  ground  within  the  lines  of  said 
claim  ;  750  fee*"  on  said  lode  running  north  10  degrees  east 
from  the  center  of  the  discovery  shaft,  and  750  feet  running 
south  10  degrees  west  from  said  center  of  discovery  shaft ; 
said  discovery  shaft  being  situate  upon  said  lode,  within 
the  lines  of  said  claim,  in  Silver  Cliff  Mining  District, 
County  of  Custer,  State  of  Colorado.  Said  claim  is  bounded 
and  described  as  follows  :  Beginning  at  corner  No.  •!  (etc., 
describe  as  in  original  location  or  according  to  the  new 
lines,  if  changed,  and  conclude  as  follows}  : 

Being  the  same  lode  originally  located  on  the  first 
day  of  May,  A.  D.  1894,  and  recorded  on  the  first  day  of 
June,  A.  D.  1894,  in  ftoofc  7,  page  11,  in  the  office  of  the  re- 
corder of  said  county.  This  further  certificate  of  loca- 
tion is  made  without  waiver  of  any  previous  rights,  but 
to  correct  any  error  in  prior  location  or  record,  to  secure 
all  abandoned  overlapping  claims,  and  to  secure  all  the 
benefits  of  section  3160  of  Mills'  Annotated  Statutes  of  Col- 
orado. Date  of  relocation,  January  7,  1903.  Date  of  cer- 
tificate. January  8,  3903. 

Attest :     Jcre  Mahoney.  ANDREW   J.   HUGHES. 

Nearly  all  the  mining  States  have  adopted  stat- 
utes similar  to  the  Colorado  Act  providing  for  the  re- 
location of  abandoned  claims,  for  relocation  by  the 
owner,  or  the  filing  of  amended  certificate  of  loca- 
tion. 

Same  Particularity  As  in  Original  Location. 

The  discovery  shaft,  side  and  corner  posts 
should  be  found  on  the  ground  before  any  second  rec- 
ord is  made,  and  if  the  relocation  changes  the  bound- 
aries or  is  made  on  account  of  any  previous  mistake 


120  RELOCATION  OF  CLAIMS. 

or  irregularity  in  any  act  of  location  the  same  should 
be  rectified  upon  the  ground  before  recording.  The 
description  in  the  new  certificate  will,  of  course,  cor- 
respond to  the  new  boundaries. 

A  new  location  stake  should  also  be  erected  at 
the  discovery,  if  the  length  or  width  called  for  on 
the  original  stake  is  altered,  and  especially  if  the 
name  of  the  claim  is  changed.  In  other  instances  the 
old  stake  could  be  considered  as  answering  all  pur- 
poses of  notice  the  same  as  the  old  discovery  shaft 
which  does  not  need  to  be  sunk  to  any  greater  depth 
if  it  has  already  the  legal  depth.  In  fact,  no  change, 
whatever,  upon  the  ground  is  necessary  if  the  original 
location  was  perfectly  regular,  and  the  only  idea 
in  relocating  or  in  filing  the  amended  certificate  is  to 
formally  appropriate  abandoned  interferences  or  to 
correct  mistakes  in  the  record.  The  relocator  may 
use  as  his  corners  old  monuments  already  placed. — 
Conway  v.  Hart,  62  Pac.  44. 

When  admitted  in  evidence  both  the  original  and 
relocation  certificates  are  to  be  construed  together. 
— Duncan  v.  Fulton,  61  Pac.  244-  i 

The  Intent  of  the  Act  is : 

First,  to  provide  a  recognized  mode  of  relieving 
from  the  consequences  of  clerical  and  other  mis- 
takes; second,  to  give  to  old  locations  the  benefit  of 
the  additional  width  allowed  under  the  new  Act,  and 
third,  to  allow  change  of  bounds  where  the  old  sur- 
vey was  found  to  vary  from  the  strike  of  the  lode. 
— Seymour  v.  Fisher,  16  Colo.  189. 

An  additional  or  amended  location  certificate 
may  be  filed  on  old  3,000-foot  claims  for  mere  pur- 
pose of  more  specific  description,  but  such  claim  can- 
not increase  its  width  and  at  the  same  time  retain  its 
old  length. 

After  Loss  of  Discovery  Shaft. 

Where  a  discovery  is  made  within  the  lines  of  an 
older  claim,  or  the  locator  suffers  his  discovery  to  be 
patented  by  a  hostile  location,  he  may  make  a  valid 
relocation  of  that  part  of  the  claim  which  remains 


RELOCATION  OF  CLAIMS.  121 

to  him  upon  a  new  discovery  made  on  clear  ground. 
— Erwin  v.  Per  ego,  93  Fed.  609;  Silver  City  Co.  v. 
Lowry,  57  Pac.  11.  Affirmed  without  discussion  of 
this  point  in  Lowry  v.  S.  C.  Co.  179  U.  8.  196. 

To  Reform  End  Lines. 

A  relocation  may  be  made  so  as  to  make  the  end 
lines  parallel  and  place  the  lode  in  position  to  claim 
extralateral  rights.-—  Tyler  Co.  v.  Last  Chance  Co.  71 
Fed.  849. 
Changing  Boundaries. 

A  claim  may  be  swung  at  right  angles  if  it  takes 
up  no  ground  to  which  rights  have  intervened. — Dun- 
can v.  Fultpn,  61  Pac.  244- 

Distinction    Between    Relocation    and    Amended 
Certificate. 

In  strictness  there  is  a  relocation  only  when  some 
change  is  made  upon  the  ground,  as  by  changing 
length,  width  or  boundaries;  perhaps  also  when  over- 
lapping abandoned  ground  is  taken.  The  certificate 
filed  to  show  such  change  is  a  relocation  certificate. 
But  if  the  error  is  in  the  papers  only,  as  by  a  mis- 
leading or  too  vague  description,  there  is  no  reloca- 
tion, but  only  the  filing  of  an  amended  location  cer- 
tificate. But  the  terms  are  not  always  used  with 
exactness  even  by  the  legal  profession,  all  such  papers 
as  well  as  acts  being  called  relocations  or  relocation 
certificates,  and  a  misuse  of  the  terms  is  not  generally 
material. — Cheesman  v.  Shreeve,  40  Fed.  789. 

The  above  form  would  answer  in  either  instance, 
but  the  following  is  more  exact  in  cases  where  no 
change  is  made  in  the  boundaries  and  no  error  except 
indefinite  description  is  to  be  corrected,  and  no  over- 
lapping ground  to  be  taken  up. 

AMENDED    LOCATION    CERTIFICATE. 

KNOW  ALL  MEN  BY  THESE  PRESENTS,  That  I,  Maurice 
W.  Levy,  of  the  County  of  Teller,  State  of  Colorado,  do 
hereby  make  and  file  this,  my  amended  certificate  of  loca- 
tion upon  the  Evolution  Lode  Mining  Claim,  situate  In  Roar- 
ing Fork  Mining  District,  County  of  Pitkin,  State  of  Colo- 
rado, claiming  one  hundred  and  fifty  feet  in  width  on  each 


122  RELOCATION  OP  CLAIMS. 

side  of  the  center  of  said  lode  at  the  surface,  and  all  veins, 
lodes  and  ledges  within  the  lines  of  said  claim,  with  their 
dips,  variations  and  angles  ;  one  thousand  feet  on  said  lode 
running  north  33  degrees  cast  from  center  of  discovery 
shaft,  and  five  hundred  feet  running  south  22  degrees  west 
from  said  center  of  discovery  shaft.  Said  lode  mining  claim 
is  bounded  and  described  as  follows,  to  wit :  Beginning  at 
corner  No.  1  (describe  ~by  metes  and  bounds  with  ties  from 
surveyors'  notes)  being  the  same  lode  of  which  the  original 
location  certificate  (made  by  Samuel  Levy)  is  filed  in  book 
17,  page  51,  in  the  office  of  the  clerk  and  recorder  of  said 
Pitkin  County.  * 

This  amended  certificate  is  filed  without  waiver  of  any 
previous  rights,  for  the  purpose  of  correcting  and  making 
more  specific  the  boundaries  and  description  of  said  lode  as 
originally  located  upon  the  ground. 

Date  of  original  location,  April  12,  1900.  Date  of 
amended  certificate,  January  5,  1903. 

MAUHICE  W.  LEVY. 

Such  amended  location  certificate  may  be  filed 
even  after  suit  commenced. — Strepey  v.  Stark,  7 
Colo.  6U{. 

Relation  Back  and  Intervening  Claim. 

It  relates  back,  where  adverse  rights  have  not  in- 
tervened, to  the  date  of  the  original  location. — McGin- 
nis  v.  Egbert,  15  M.  R.  329;  Strepey  v.  Stark,  supra. 

In  the  case  of  McEvoy  v.  Hyman,  15  M.  R.  397, 
and  in  Craig  v.  Thompson,  10  Colo.  517,  the  amended 
record  was  allowed  in  evidence  and  to  affect  and  cut 
out  intervening  claimants.  In  the  latter  case  the 
intervening  claimant  was  treated  as  a  trespasser  who 
could  not  initiate  rights;  in  the  former  the  original 
certificate  was  treated  as  a  defective  but  not  as  a 
void  instrument. 

The  same  ruling  was  followed  in  Cheesman  v. 
Shreeve,  40  Fed.  787,  stating  in  terms  that  an 
amended  record  related  back  to  the  date  of  the  orig- 
inal record. 

In  the  Colorado  Statute  above  printed  there  is 
an  express  saving  of  intervening  rights.  But  such 
exception  is  superfluous  because  vested  rights  save 
themselves.  There  is  no  doubt  that  an  amended  rec- 
ord, the  land  office  entry,  the  patent,  every  successive 
incident  toward  perfecting  title,  relates  back  to  the 


RELOCATION  OF  CLAIMS.  123 

first  step  taken  toward  obtaining  such  title.  But  not- 
withstanding what  might  be  gathered  from  the  word- 
ing of  the  decisions  to  such  effect  taken  alone,  they 
are  to  be  read  in  connection  with  the  fact  that  the 
doctrine  of  relation  cannot  be  invoked  to  work  injus- 
tice to  third  parties. — Gibson  v.  Chouteau,  13  Wall, 
101.  And  if  a  location  or  location  certificate  was  so 
defective  as  to  be  void,  or  so  irregular  that  it  allowed 
strangers  to  become  legal  locators  of  the  same  ground, 
in  such  cases  an  amended  certificate  or  a  relocation 
will  not  relate  back  so  as  to  cut  out  such  intervening 
locators. — Hall  v.  Arnott,  22  Pac.  200;  Jordan  v. 
Schuerman,  53  Pac.  579;  Deeney  v.  Mineral  Go.  67  Pac. 
724;  Morrison  v.  Regan,  67  Pac.  956;  Brown  v.  Ore- 
gon Co.  110  Fed.  728. 

Where  Original  Record  Was  Voidable  Only. 

In  Moyle  v.  Bullene,  7  Colo.  App.  308,  the  very 
tenable  distinction  is  made  that  where  the  original 
location  certificate  was  so  "defective  as  to  absolutely 
fail  to  comply  with  the  statutory  requirements"  it 
was  void  and  the  amended  record  would  not  relate 
back;  but  if  the  original  paper  was  only  lacking  in 
technical  detail  the  two  should  be  construed  as  of 
the  date  of  the  first,  and  both  construed  together  ac- 
cording to  the  doctrine  of  relation.  But  in  Frisholm 
v.  Fitzgerald,  53  Pac.  1109,  where  a  record  contained 
no  reference  at  all  to  a  natural  object  or  permanent 
monument  and  was  not  only  constructively  void  for 
non-compliance  with  the  Congressional  Act,  but  was 
declared  void  in  terms  by  the  Colorado  Statute,  the 
relocation  was  held  to  relate  back  to  the  original 
record  and  to  cut  out  an  intervening  title. 

The  opinion  in  the  case  is  peculiar  in  this,  that 
it  is  the  personal  view  of  one  judge,  and  both  of  his 
associates  refused  to  concur.  It  is  not  the  opinion 
of  a  Court,  and  therefore  has  no  obligation  as  a 
precedent  binding  the  nisi  prius  courts  of  that  state. 
Nothing  in  the  case  or  the  reasoning  on  which  it  is 
based  shakes  our  conclusions  as  stated  in  the  pre- 
ceding paragraph,  and  we  consider  untenable  the 


]24  RELOCATION  OF  CLAIMS. 

proposition  that  any  amendment  can  cure  a  void 
record  as  against  an  intervening  location. 

Will  Not  Cure  Want  of  Discovery. 

In  most  of  the  cases  above  cited  the  point  was 
one  of  objection  to  the  form  or  contents  of  the  orig- 
inal Location  Certificate — that  is,  to  the  papers  in  the 
case — not  the  merits  of  the  discovery  on  the  location 
proper,  but  in  Beals  v.  Cone,  62  Pac.  949,  there  was  no 
discovery  when  the  original  record  was  made.  The 
second  claimant  had  a  valid  discovery  before  the 
first  had  any  discovery,  and  the  court  held  that  the 
intervening  claimant  took  the  ground  and  that  the 
subsequent  discovery  on  the  prior  claim  could  have 
no  relation  back. 

An  amended  location  made  by  a  party  who  has 
parted  with  his  title  will  not  be  recognized. — Gray 
Copper  Lode,  18  L.  D.  536. 

The  Official  Survey  Corrects  the    Errors    of    the 

original  location  and  its  stakes  and  corners  need 
not  be  identified  with  the  locator's  survey. — Howeth 
v.  Sullenger,  45  Pac.  841. 

Changing  Names  of  Locator  on  Notices. — Trans- 
fers Before  Record. 

After  a  record  is  made  based  on  a  valid  loca- 
tion, the  possessory  title  becomes  perfect  as  and  for 
and  subject  to  the  conditions  of  a  possessory  title. 
— Grioillim  v.  Donnellan,  15  M.  R.  482.  But  before 
record  it  is  not  unusual  for  prospectors  to  settle  their 
rights  among  themselves  by  the  primitive  but  prac- 
tical method  of  adding  or  erasing  names  from  the 
discovery  notice.  Names  cannot  be  so  erased  to  the 
wrong  of  the  right  vested  by  putting  them  there  in 
the  first  instance. — Thompson  v.  Spray,  72  Cal.  528. 
But  this  is  matter  of  complaint  only  by  the  parties 
injured  (if  injured)  and  strangers  to  the  title  can- 
not take  advantage  of  such  things. — Thompson  v. 
Spray,  supra;  Omar  v.  Soper,  15  M.  R.  496. 

In  Doe  v.  Waterloo  Co.  70  Fed.  456,  it  was  held 
that  a  verbal  transfer  of  an  interest  in  a  title  not 


UNITED  STATES  PATENT.  125 

yet  recorded  was  valid  and  that  the  new  associate 
taken  in  by  the  prospector  could  complete  the  loca- 
tion for  their  joint  benefit. 

Change  of  Name  of  Lode. 

It  is  not  infrequent  by  filing  amended  location 
certificate  and  posting  amended  notice  on  the  claim, 
to  change  the  name  of  the  lode.  Where  names  such 
as  decency  forbids  have  been  placed  on  record  the 
Land  Office  has  declined  to  patent  the  lode  by  name. 
In  ^such  instances,  or  even  where  the  name  is  objec- 
tionable only  for  sentimental  reasons,  where  all  par- 
ties interested  consent,  a  change  of  name  is  certainly 
legal. — Seymour  v.  Fisher,  16  Colo.  197.  But  when 
done,  as  it  has  been,  in  instances,  preparatory  to  ap- 
plication for  patent  with  intent  to  mislead  and  fore- 
stall an  anticipated  adverse  claim,  or  preparatory  to 
intended  forfeiture  publication,  there  could  be  no 
stronger  circumstance  from  which  to  draw  the  infer- 
ence of  fraud. 

The  Edith  lode  was  located  1,200  feet  in  length. 
Discovering  that  there  was  200  feet  of  vacant  ground 
the  Edith  owners  made  a  new  location  1,400  feet 
long,  calling  it  the  Kirby  lode.  The  Court  held  that 
the  second  location  was  a  relocation  of  the  first  and  a 
valid  claim.— Shoshone  Co.  v.  Rutter,  87  Fed.  801. 


UNITED  STATES  PATENT, 


Policy  of  the  Government  As  to  Mineral  Lands, 

The  policy  of  the  United  States  has  always  been 
to  pass  the  fee  simple  title  of  its  lands  to  the  ulti- 
mate purchaser,  but  to  encourage  offers  to  purchase 
from  settlers  and  improvers  only.  To  extend  this 
policy  into  a  system  of  land  tenure  it  first  gives  a 
general  license  to  prospect  and  discover  mineral 
value — passing  then  to  the  discoverer  the  sole  right 
to  possess  and  use,  and  finally  grants  the  title  in  fee 
after  due  proof  of  occupation  and  improvement. 


126  UNITED  STATES  PATENT. 

A  temporary  departure  from  this  rule  in  taking 
an  impolitic  royalty  from  the  miner,  was  made  in 
the  attempt  to  lease  the  lead  and  copper  lands  on 
the  Mississippi  and  Lake  Superior. — Lorimier  v. 
Lewis,  12  M.  R.  437. 

The  government  had  no  occasion  to  deal  with 
lands  containing  the  royal  metals  until  the  acquisi- 
tion of  California,  upon  which  event,  instead  of 
adopting  any  system  of  legislation,  it  merely  reserved 
the  mineral  lands  from  sale  and  acquiesced  in  the 
asserted  rights  of  the  prospector  and  miner  until  1866. 

In  that  year  were  passed  the  first  of  what  are 
known  as  the  Mining  Acts,  now  embraced  in  Title 
32  of  the  Revised  Statutes.  This  was  followed  by  the 
Acts  of  1870  and  1872,  with  other  slight  amendments. 

The  ultimate  intent  of  these  Acts  is  to  pass  the 
fee  simple  to  the  discoverer  of  a  mine,  or  his  grantees, 
after  a  certain  amount  of  development  has  been  made 
upon  the  claim,  and  until  final  entry  the  locator  holds 
by  a  possessory  title. 

Progression  of  Title. 

Title  becomes  initiate  by  discovery;  the  posses- 
sory title  is  complete  upon  location  and  record,  and 
is  maintained  from  year  to  year  by  compliance  with 
the  condition  of  annual  labor.  The  occupant  after 
$500  expenditure  has  the  right  to  buy  the  land  from 
the  United  States  by  entry  thereof  in  the  local  land 
office.  This  entry  entitles  him  to  receive  a  patent 
which  issues  later  from  the  general  land  office  at 
Washington. 

Title  After  Entry  and  Before  Patent. 

After  entry  in  the  land  office,  although  the  title 
is  still  technically  equitable,  it  amounts  practically 
to  the  legal  or  fee  simple,  because: 

First — The  receiver's  receipt  for  the  purchase 
money  is  evidence  of  title  in  the  purchaser,  with  or 
without  statute  to  such  effect.— M.  A.  8.  §  1748;  Last 
Chance  Co.  v.  Tyler  Co.  61  Fed.  558. 

Second — The  subsequent  issue  of  the  patent  fol- 
lows as  a  mere  ministerial  act,  except  where  some 


UNITED  STATES  PATENT.  127 

irregularity  has  occurred  in  the  application,  or  a 
protest  delays  or  prevents  issue. 

Third — Before  entry  is  allowed  the  time  for 
the  assertion  of  any  adverse  title  must  have,  elapsed. 

Fourth — Upon  the  issuance  of  patent,  the  fee 
passes  to  the  purchaser,  and  the  title  relates  back  in 
all  cases  to  the  entry  at  least. 

Choice  of  Land  Systems. 

It  was  in  the  power  of  the  United  States  to  have 
^adopted  any  one  of  several  different  systems  in  the 
disposition  of  its  mineral  lands;  but  at  some  stage, 
under  any  system,  a  decision  of  the  conflicting 
equities  between  the  adverse  claimants  would  have 
to  be  reached. 

First — A  system  based  on  rectangular  surveys, 
upon  which  a  block  book  could  be  platted,  which 
would,  on  its  face,  establish  the  priority  of  any  as- 
sertion of  title  to  the  block  representing  any  certain 
mining  claim,  analogous  to  the  method  adopted  by 
the  British  Government  with  reference  to  the  Austra- 
lian gold  fields,  and  the  same  in  outline  as  the  system 
adopted  in  case  of  agricultural  lands,  the  departure 
from  which  in  yielding  to  prejudice  in  favor  of  ob- 
solete district  rules,  has  caused  nearly  all  the  con- 
tention which  is  now  common. 

Second — A  system  under  which  every  applicant 
would  receive  a  patent  upon  an  ex  parte  proceeding 
without  regard  to  priority  or  adverse  rights,  leaving 
the  several  patentees  to  contest  their  equities  in  the 
courts  upon  an  equal  footing  analogous  to  the  old 
land  system  of  Virginia. 

Third — A  system  based  on  making  the  proceed- 
ing to  obtain  patent  a  proceeding  in  rem,  compelling 
the  applicant  to  give  notice  of  his  application  and 
forcing  an  adjudication  of  all  adverse  equities  before 
the  issue  of  the  patent,  which  was  the  Pennsylvania 
system. 

The  last  is  the  system  adopted  by  the  govern- 
ment, by  the  original  act  of  1866,  and  continued  in 
all  the  amendments.  % 


128  UNITED  STATES  PATENT. 

Priorities  Adjudicated  Before  Patent  Issues. 

The  result  follows  that  upon  the  issue  of  a  pat- 
ent the  patentee  has  got  rid  of  all  assertions  of  title 
hostile  to  his  own  title,  and  all  supposed  prior  dis- 
coveries and  locations  which  might  have  interfered 
with  him  are  lost,  by  failure  to  assert  them  as  ad- 
verse claims,  or  to  prove  them  in  the  ejectment  suit 
brought  in  support  of  the  adverse  claim. — Silver  Boiv 
Co.  v.  Clarke,  5  Pac..  570;  Raunheim  v.  Dam,  9  Pac. 
iS,(^;  Kannaugh  v.  Quartette  Co.  27  Pac.  2.'i5 ;  Seymour 
v.  Fisher,  16  Colo.  197. 

The  publication  required  by  the  Mining  Acts  "is 
in  effect  a  summons  to  all  persons  whose  interests 
may  be  affected  by  the  issuance  of  a  patent,"  to 
appear  and  file  their  adverse  claims. — Wolfley  v.  Leb- 
anon Co.  13  M.  R.  282;  Wight  v.  Dubois,  21  Fed.  693. 
The  Land  Department  Issues  the  First  Patent  to 
the  first  applicant,  without  regard  to  the  priority 
of  his  possessory  title,  and  in  case  the  senior  pos- 
sessory title  fail  to  assert  its  seniority  by  filing  and 
prosecuting  its  adverse  claim,  the  seniority  of  such 
possessory  title  is  lost,  and  yields  to  the  title  which 
the  government  issues  to  the  applicant  for  patent. 

Segregation  from  Public  Domain. 

The  Surveyor  General  shows  all  conflicts  with 
previous  surveys,  upon  the  approved  plat;  and  notes 
all  previous  official  surveys  in  the  approved  field 
notes;  but  only  approves  as  to  the  correctness  of 
the  survey,  not  excluding  the  area  of  priorities,  if 
their  inclusion  is  asked.  The  register  of  the  land  of- 
fice, when  application  for  patent  is  made,  is  supposed 
to  except  all  previous  surveys  as  noted  in  the  approved 
field  notes  (where  such  surveys  have  been  followed 
by  applications  for  patent),  in  his  notice  for  publica- 
tion, which  is  the  first  period  at  which  the  officers 
of  the  United  States  recognize  the  segregation  of  the 
claim  from  the  mass  of  the  public  domain.  From 
this  point  the  claim  so  first  segregated  must,  under 
the  practice  of  the  land  office,  be  recognized  by  all 
subsequent  applicants  for  survey  as  prior  in  point  of 


UNITED  STATES  PATENT.  129 

time,  and  they  are  compelled  to  except  from  their 
applications  such  previousjy  approved  surveys,  so 
duly  followed  by  filing  their  applications. 

Under  former  practice  the  segregation  took  place 
in  the  office  of  the  Surveyor  General.  But  the  Sur- 
veyor General  now  approves  everything  within  the 
exterior  boundaries  as  clear  ground,  to  the  applicant 
for  survey,  if  he  so  request,  leaving  to  the  land  office 
the  duty  of  excepting  from  his  entry  and  patent, 
prior  patents  and  applications  for  patent. 

Under  the  Act  of  1866  the  Survey  was  not  ap- 
proved until  after  the  application  had  been  otherwise 
perfected. 

The  Doctrine  of  Relation. 

Where  successive  steps  are  essential  to  perfect 
title,  as  discovery,  location,  record,  application  for 
patent,  entry  and  finally  patent;  and  during  the  prog- 
ress of  the  time  required  to  complete  the  series  two 
hostile  parties  have  taken  some  or  all  of  these  steps 
towards  obtaining  title  to  the  same  ground — the  doc- 
trine of  relation  may  become  material  to  determine 
between  them  the  question  of  priority* 

Where  discovery  is  followed  by  location  and  rec- 
ord within  the  proper  or  fixed  periods  allowed  and 
entry  and  patent  follow  in  due  course,  the  title  is 
considered  in  general  and  in  theory  to  relate  back 
to  discovery.  This  theoretical  relation  is,  of 
course,  of  no  materiality  unless  a  second  title  has 
intervened,  and  if  a  second  title  has  intervened  at  a 
period  when  the  first  title  was  in  default  the  doctrine 
of  relation  does  not  apply,  or  rather  it  favors  the 
second  title. 

The  different  classes  of  claims  to  which  it  ap- 
plies necessitate  certain  distinctions. 

Where  Both  Are  Possessory  the  first  discovery 
followed  up  by  completed  location  within  the 
allowed  period  becomes  a  title  calling  back  to 
date  of  discovery,  and  by  the  doctrine  of  relation 
will  cut  out  a  possessory  title  completed  sooner 
though  initiated  later  than  the  first  discovery. — Pat- 


130  UNITED  STATES  PATENT. 

terson  v.  Hitchcock,  5  M.  R.  542.  For  instance,  if  A 
discover  a  lode  on  January  1st  in  a  State  which  gives 
60  days  to  sink  discovery  and  30  days  more  to  record, 
and  he  completes  sinking  on  the  60th  day  and  records 
on  the  90th  day,  he  has  an  older  and  better  title  than 
B,  who  discovers  the  same  vein  on  January  10th,  but 
promptly  completes  his  sinking  by  the  20th  and  sur- 
veys and  records  on  the  21st.  B  is  prior  to  A  in 
point  of  time  on  every  incident  of  location  except 
discovery,  but  A,  not  exceeding  his  statutory  limit  of 
time,  is  not  in  default  on  any  item  of  location,  clearly 
calls  back  to  January  1st  and  has  the  older  and  better 
possessory  title. 

If,  on  the  other  hand,  A  allows  any  of  his  periods 
to  expire  without  doing  the  act  for  which  the  law 
allowed  a  certain  time  and  the  second  title  becomes 
initiate  during  such  period  of  lapse,  the  doctrine  of 
relation  does  not  apply  and  B  has  the  older  and  better 
title.  ; 

Patented  Claims — Failure  to  Adverse. 

Where  two  claims  overlap  or  cover  the  same 
ground,  and  one  of  them  applies  for  patent,  the  other 
must  adverse  and  maintain  its  adverse,  otherwise  it 
loses  all  pretense  to  priority;  and  if  it  fails  so  to  do 
and  afterwards  goes  to  patent  on  its  own  application, 
all  claims  to  priority  are  gone  and  it  cannot  appeal 
to  the  doctrine  of  relation  to  defeat  the  express  terms 
of  the  statute. — Eureka  Co.  v.  Richmond  Co.  9  M.  R. 
578. 

The  above  paragraph  refers  only  to  cases  where 
there  is  a  surface  conflict.  For  if  there  be  no  surface 
conflict  there  can  be  no  adverse  and  the  rule  has  no 
application. — Empire  Co.  v.  Bunker  Hill  Co.  114  Fed. 
420. 

Thus  in  the  class  of  cases  where  two  veins  par- 
allel on  surface,  dip  toward  each  other  and  are  found 
to  unite  going  down,  the  doctrine  of  relation  has  its 
full  application  and  title  will  be  carried  back  to  the 
date  of  location  and  if  necessary  to  the  date  of  dis- 


UNITED  STATES  PATENT.  131 

covery  so  as  to  give  the  united  vein  to  the  title  first 
initiated  and  perfected  without  default  or  lapse. 

Applications  Pending  at  Same  Time. 

The  question  may  also  arise  between  two  claim- 
ants who  are  applying  for  patent  at  the  same  time. 

This  proceeding  begins  by  an  order  for  Survey, 
which  is  followed  by  the  survey  in  the  field 
and  by  its  approval  in  the  Surveyor  Gen- 
eral's Office.  This  approved  Survey  or  the  date  of 
its  approval  determines  no  priorities.  It  is  only 
when  the  papers  reach  the  Land  Office  that  a  survey 
becomes  "prior"  by  its  right  to  be  excluded  from  later 
applications,  and  the  applicant  whose  area  is  excluded 
in  the  Land  Office  becomes  the  party  who  must  ad- 
verse in  order  to  maintain  such  priority  of  title  as  he 
may  claim.— 26  L.  D.  81;  29  Id.  226.  If  he  fail  to  ad- 
verse, his  patent  when  obtained  will  show  the  ground 
excluded  in  favor  of  the  party  who  was  first  to  file  his 
"application  for  patent"  (form  M,  post  p.  396),  and 
even  if  he  be  the  first  to  enter  and  pay  and  obtain  the 
Receiver's  Receipt,  the  entry  when  made  of  the  Sur- 
vey which  first  filed  its  "application"  will  relate  back 
to  the  date  of  such  filing.  ; 

Double  Patent  Under  Different  Systems. 

It  may  become  material  also  in  any  case  where 
two  parties  hold  patents  for  the  same  ground,  which 
have  been  obtained  under  different  ex  parte  proceed- 
ings where  there  was  no  opportunity  to  adverse  and 
the  proceeding  therefore  not  a  proceeding  in  rem  as 
in  a  conflict  between  School  Land  and  a  mining 
claim. — Heydenfeldt  v,  Daney  Co.  IS  M.  R.  205.  Or 
between  a  lode  and  a  Town  Site. — Talbott  v.  King,  9 
Pac.  434;  Silver  Bow  Co.  v.  Clark,  5  Mont.  378;  The 
Smoke  House  Lode,  12  Pac.  858.  Or  where  the  same 
ground  has  been  patented  as  Lode  and  Placer. — Iron 
S.  Co.  v.  Campbell,  16  M.  R.  218. 

A  patent  always  relates  back  to  date  of  entry  at 
least.  But  a  senior  entry  on  a  junior  application  will 
not  be  prior  to  the  entry  of  a  senior  application  when 
made,  because  relation  will  carry  the  junior  entry 


132  UNITED  STATES  PATENT. 

back  to  the  date  of  its  senior  application.  All  three 
items,  the  application,  the  entry  and  the  patent  are 
merely  successive  steps,  and  the  latter  two  relate  to 
the  date  of  the  first. 

Many  loose  assertions  are  found  in  the  cases  on 
this  topic,  not  taking  into  consideration  the  condi- 
tions above  attempted  to  be  pointed  out.  If,  in  all 
cases,  a  patent  related  back  to  discovery,  a  patent  of 
to-day  on  a  location  of  1866  would  supplant  a  patent 
to  the  same  ground  issued  twenty  years  ago.  Rela- 
tion never  applies  either  to  defeat  a  statute  or  to  . 
work  -manifest  injustice. 

Excluded  Area. 

It  is  the  practice  of  the  department  to  exclude 
from  each  later  patent  all  claims  which  have  land 
office  priority  and  the  junior  patentee  has  no  right 
under  his  patent  to  follow  any  vein  on  its  strike 
through  the  area  reserved  in  favor  of  such  excluded 
survey. — Montana  Co.  v.  Boston  Co.  51  Pac.  159.  And 
where  such  exclusion  plainly  appears,  and,  adhering 
strictly  to  the  ruling  in  the  case  just  cited,  it  can 
hardly  be  said  that  there  are  two  grants  of  the  same 
thing,  although  each  lode  patent  is  issued  on  the 
theory  that  it  covers  so  many  lineal  feet  on  the  vein. 

The  Nature  of  the  Merger  of  the  possessory  into 
the  patented  title  is  learnedly  discussed  in  Black 
v.  Elkhorn  Co.  49  Fed.  549;  Affirmed  52  Fed.  859; 
163  U.  8.  445. 

What  It  Conveys. 

A  patent  covers  blind  lodes  within  and  under- 
neath its  lines. — Galhoun  Co.  v.  Ajax  Co.  59  Pac. 
608;  affirmed  182  U.  8.  499.  The  surface  and  the 
right  to  follow  on  the  dip,  veins  apexing  within  its 
lines.— Empire  Co.  v.  Bunker  Hill  Co.  114  Fed.  420. 
The  surface  although  the  vein  has  left  the  side  lines. 
— Argonaut  Co.  v.  Turner,  23  Colo.  400. 

Conclusiveness  As  to  Title. 

A  patent  is  conclusive  in  all  suits  at  law  (1) 
when  valid  on  its  face  and  (2)  when  not  issued  in 


UNITED  STATES  PATENT.  133 

opposition  to  law.  In  any  such  case  it  is  a  final 
disposition  of  the  legal  title  and  must  be  recognized 
by  courts  and  allowed  such  effect. — Boggs  v.  Merced 
Co.  10  M.  R.  334-  It  is  also  conclusive  as  to  the 
bounds  or  limits  of  the  claim. — Waterloo  Co.  v.  Doe, 
56  Fed.  685.  Patent  is  conclusive  evidence  that  there 
had  been  a  sufficient  location  notice.— Chambers  v. 
Jones,  42  Pac.  758;  that  a  valid  discovery  and  lo- 
cation had  been  made;  that  the  required  expendi- 
ture showed  on  the  ground  and  that  the  patentee  is 
owner  of  all  veins  enclosed  by  his  survey. — Carson 
City  Co.  v.  North  Star  Co.  83  Fed:  658. 

It  is  conclusive  evidence  of  a  prior  location  as 
to  all  claims  having  surface  conflicts  not  excluded 
from  its  area. — Empire  Co.  v.  Bunker  Hill  Co.  114 
Fed.  4^0.  And  of  a  valid  discovery. — Calhoun  Co.  v. 
Ajax  Co.  182  U.  8.  499. 

But  the  late  case  of  Uinta  Co.  v.  Creede  Co.  119 
Fed.  164,  makes  the  distinction  that  where  a  hostile 
claim  has  had  no  opportunity  to  contest  the  issue  of 
the  patent,  as  for  instance,  where  a  lode  has  been 
patented  across  the  line  of  a  tunnel  before  it  was 
cut  in  the  tunnel,  the  patent  is  not  conclusive  evi- 
dence of  a  valid  discovery  as  against  the  asserted 
rights  of  such  tunnel. 

Conclusiveness  As  to  Mineral  Character  of  Land. 

Where  it  issues  after  a  supposed  determination 
of  the  mineral  or  non-mineral  character  of  the  land 
it  is  conclusive  on  that  point. — Gale  v.  Best,  78  Cal. 
235;  12  Am.  St.  R.  44. 

Patent,  When  Void. 

If  not  valid  on  its  face  or  if  issued  in  spite 
of  a  law  which  forbade  its  issuance,  it  is  an  in- 
operative paper,  and  may  be  passed  upon  and  ex- 
cluded in  a  suit  at  law — because  it  is  void. — Kahn 
v.  Old  Telegraph  Co.  11  M.  R.  646;  St.  Louis  Co.  v. 
Kemp,  Id.  673;  Garrard  v.  S.  P.  Mines,  82  Fed.  578. 
A  patent  for  a  lode  in  excess  of  legal  width  has  been 
held  void. — Lakin  v.  Dolly,  53  Fed.  333;  Lakin  v. 
Roberts,  54  Fed.  461;  but  otherwise  as  to  patent  per- 


134  UNITED  STATES  PATENT. 

fecting  locations  made  prior  to  the  Act  of  1872. — Gar- 
son  City  Co.  v.  North  Star  Go.  supra. 

Patent,  When  Voidable. 

But  if  only  irregular,  or  obtained  by  fraud,  or 
issued  to  the  wrong  party,  it  is  only  voidable^  and 
must,  until  set  aside,  or  a  trust  declared  thereon, 
be  taken  as  conclusive  both  at  law  and  in  equity. — 
Silver  Bow  Go.  v.  Glarke,  5  Pac.  570;  Rose  v.  Rich- 
mond Go.  17  Nev.  26. 

A  patent  is  not  void  as  to  the  excess  from  the 
fact  that  it  conveys  more  than  300  feet  from  the 
center  of  the  lode. — Peabody  Go.  v.  Gold  Hill  Go. 
97  Fed.  657;  111  Fed.  818. 

Void  Conditions  in  Patents. 

The  land  office  cannot  insert  conditions  or  ex- 
ceptions not  authorized  by  law,  in  a  patent. — Deffe- 
back  v.  Hawke,  115  U.  S.  392;  Clary  v.  Hazlett,  7 
Pac.  701;  Talbott  v.  King,  9  Pac.  434;  Silver  Bow  Go. 
v.  Clarke,  5  Pac,  570;  Davis  v.  Weibbold,  139  U.  S. 
527. 
All  Presumptions  in  Its  Favor. 

When  a  patent  is  judicially  attacked  all  presump- 
tions are  indulged  to  its  favor.  It  will  be  assumed 
that  everything  was  done  which  the  law  required  to 
be  done,  and  mere  irregularities,  though  proved,  will 
not  impeach  it.— U.  S.  v.  Marshall  Co.  16  M.  R.  205; 
U.  S.  v.  Iron-Silver  Co.  128  U.  S.  673 

Placer  Patented  As  Lode  Claim. 

It  is  no  fraud  upon  the  Government  if  placer 
ground  has  been  patented  as  a  lode  claim  at  a  greater 
price  per  acre. — Peabody  Co.  v.  Gold  Hill  Co.  Ill  Fed. 

818. 

Suits  by  U.  S.  to  Annul  Patent; 

When  obtained  by  fraud  against  the  United 
States,  as  where  mineral  land  has  been  entered  as 
agricultural,  or  upon  false  representations,  the  false 
representations  being  material,  the  application  to  set 
aside  being  made  without  too  great  delay  and  inno- 
cent buyers  being  to  a  certain  extent  protected — it 


UNITED  STATES  PATENT.  135 

may  be  set  aside  at  the  suit  of  the  United  States. 
This  requires  action  by  the  Attorney  General,  who 
directs  the  U.  S.  District  Attorney  to  bring  suit  in 
the  U.  S.  Circuit  Court. — Boggs  v.  Merced  Co.  10  M. 
R.  334;  Mullan  v.  U.  S.  118  U.  S.  271;  U.  8.  v.  Iron- 
Silver  Co.  128  U.  8.  673. 

Such  action  lies  where  the  patent  has  issued 
through  fraud,  mistake  or  erroneous  views  of  law  by 
the  Land  Department. — U.  S.  v.  Winona  Co.  67  Fed. 
948.  See  STATUTE  OF  LIMITATIONS. 

Degree  of  Proof. 

In  suits  to  set  aside  a  patent  or  to  declare  a  trust 
in  favor  of  another  claimant,  the  proof  to  overcome 
the  presumptions  in  favor  of  the  patent  must  be  clear 
and  convincing.— U.  8.  v.  King,  83  Fed.  188;  Thall- 
mann  v.  Thomas,  111  Fed.  277. 

Where  Issued  to  the  Wrong  Party  in  fraud  of  the 

right  of  the  real  owner,  the  suit  is  not  to  set  the 
patent  aside,  but  to  have  it  declared  that  the  party 
to  whom  it  issued  holds  in  trust,  and  to  compel  by 
decree  of  court  a  conveyance  from  him  to  the  part'y 
to  whom  it  should  have  issued. 

The  Federal  Courts  have  jurisdiction  of  such 
cases  independent  of  the  citizenship  of  the  parties. — 
Gates  v.  Producers  Co.  96  Fed.  7. 

Such  a  suit  cannot  be  maintained  on  mere  pri- 
ority of  title,  for  here  an  adverse  claim  should  have 
been  filed,  but  only  on  the  allegation  of  breach  of 
trust  or  in  like  instances. 

A  party  who  had  at  the  time  of  its  issue  no  claim 
of  title  to  the  land  patented  has  no  standing  to  at- 
tack it  for  fraud  practiced  on  the  land  department. 
—Peabody  Co.  v.  Gold  Hill  Co.  Ill  Fed.  817. 

Irrevocable — No  Second  Patent. 

After  a  patent  has  issued,  the  land  office  has  no 
power  to  cancel  or  recall  the  same  nor  to  issue  a 
second  patent  for  the  same  land  to  another  party. 
—Moore  v.  Ro~bUns,  96  U.  8.  530. 


136  INTERFERENCE  OF  CLAIMS. 

Wrong  Description. 

Where,  by  reason  of  erroneous  survey  or  other 
mistake,  the  patent  describes  other  land  than  that 
actually  applied  for,  it  may  be  corrected  upon  sur- 
render of  the  patent— 22  L.  D.  101;  28  Id.  307;  29 
Id.  160. 

Title  by  Receiver's  Receipt. 

After  valid  entry  its  holder  has  a  vested  estate 
and  the  land  has  ceased  to  be  public  domain. — Rader 
v.  Allen,  41  Pac.  154. 

Canceling  Receiver's  Receipt. 

But  the  land  office  has  the  power  to  cancel  the 
receiver's  receipt  and  all  preliminary  proceedings, 
and  frequently  exercises  this  power  in  case  of  irregu- 
larities in  the  application. 

Land  Office  Adjudications. 

When  the  contest  for  priority  between  patentees 
has  been  contested  and  adjudicated  in  the  land  office 
their  findings  within  their  jurisdiction  on  matters 
of  fact  or  mixed  law  and  fact,  in  the  absence  of 
fraud  or  imposition,  are  accepted  by  the  courts  as 
conclusive. — Jeffords  v.  Hine,  15  M.  R.  575;  Aurora 
Hill  Co.  v.  85  Co.  Id.  581. 


INTERFERENCE  OF  CLAIMS. 


Veins  Uniting  on  Strike  or  Dip. 

R.  S.  Sec.  2336. — Where  two  or  more  veins  intersect 
or  cross  each  other,  priority  of  title  shall  govern,  and  such 
prior  location  shall  be  entitled  to  all  ore  or  mineral  con- 
tained within  the  space  of  intersection  ;  but  the  subsequent 
location  shall  have  the  right  of  way  through  the  space  of 
intersection  for  the  purposes  of  the  convenient  working 
of  the  mine.  And  where  two  or  more  veins  unite,  the  oldest 
or  prior  location  shall  take  the  vein  below  the  point  of 
union,  including  all  the  space  of  intersection. — Sec.  14, 
May  10,  1872. 


INTERFERENCE  OP  CLAIMS  137 

Mining  Acts  Based  on  Erroneous  Presumption  As 

to  Facts — Irregularity  of  Veins. 

The  cause  of  the  principal  question  under  this 
heading  is  the  fact  that  the  U.  S.  Mining  Acts  con- 
cerning lode  claims  are  based  on  the  supposition  or 
theory  that  a  lode  is  a  straight  vein  whose  course 
can  be  readily  ascertained  and  indicated  by  a  straight 
line  or  a  series  of  straight  lines;  and  that  occasion- 
ally such  a  vein  !is  crossed  by  another  in  a  similar 
straight  line,  merely  requiring  the  right  of  way  to 
give  each  claim  its  proper  lode.  But  in  fact  a  lode  is 
rarely  a  straight  line;  it  is  seldom  to  be  traced  with- 
out confusion  for  more  than  a  few  hundred  feet;  and 
in  its  course  other  veins  are  absorbed  into  it;  and 
offshoots  (not  only  spurs,  but  perhaps  better  de- 
veloped veins  than  itself)  run  from  it;  and  in  its 
extension  downward,"  it  invariably  dips  laterally; 
and  often  shows  a  fork  of  which  both  parts  approach 
the  surface;  and  it  will  divide,  and  may  or  may  not 
unite  at  another  point;  and  it  will  abut  suddenly 
upon  country  rock  and  so  be  thrown  far  to  one  side; 
and  instead  of  showing  distinct  lines,  mineral  veins 
are  as  irregular,  as  disproportioned  in  length  and 
width,  as  much  intermingled,  though  on  a  larger 
scale,  as  are  the  veins  in  a  block  of  marble. 

The  theory  that  each  survey  covers  a  distinct 
vein,  or  that  a  survey  covers  any  vein  at  all,  or  that 
its  center  line  follows  the  apex  of  a  vein,  or  that  its 
discovery  shaft  is  sunk  on  a  vein,  is  all  bare  assump- 
tion— these  points  depend  upon  underground  develop- 
ments, and  not  on  diagrams  or  surface  surveys. 

Presumption  That  Survey  Covers  the  Vein. 

But  upon  proof  of  discovery  and  location  it  is  in- 
ferred that  the  survey  lines  include  the  apex  of  the 
vein,  and  this  presumption  throws  the  burden  of 
proof  on  the  party  alleging  a  departure. — Armstrong 
v.  Lower,  6  Colo.  585;  15  M.  R.  458;  Wakeman  v.  Nor- 
ton, 2Jf  Colo.  192. 

The  interference  of  veins  by  uniting  on  the 
strike,  or,  more  commonly,  the  interference  of  claims 


138  CROSS  LODES. 

by  the  holder  of  one  part  of  a  blind  lode  developing 
into  another  part  of  the  same  lode  located  by  an- 
other as  a.  separate  lode — was  of  vital  importance  be- 
fore the  Act  of  1872,  because  surface  lines  were  not 
marked  and  each  claimant  was  supposed  to  follow  his 
vein  wherever  it  ran.  But  under  present  law  the 
surface  lines  and  the  apex  within  them  in  general 
define  the  rights  of  all  parties,  with  the  obvious  ex- 
ception of 

First — Cross  lodes. 

Second — Veins  uniting  on  the  dip — which  points 
are  considered  under  the  next  two  headings. 

Overlapping  Surveys. 

The  holder  of  the  oldest  patent,  i.  e.,  in  general 
the  patent  which  has  the  senior  entry,  holds  all  veins 
which  apex  within  the  area  of  conflict. — Montana  Go. 
v.  Boston  Co.  51  Pac.  159.  The  same  rule  applies  in 
favor  of  the  older  title  where  both  are  possessory. 
Where  one  is  patented  and  the  other  is  possessory  the 
patented  claim  holds  because  (1)  it  may  always  have 
been  the  earlier  title,  and  (2)  if  not,  it  has  become 
so  by  the  failure  of  the  overlapper  to  adverse. — Em- 
pire Go.  v.  Bunker  Hill  Co.  114  Fed.  420. 

Where  there  are'  overlapping  surveys,  the  side 
lines  of  the  senior  claim  do  not  become  the  end  lines 
of  the  junior  claim  when  the  location  extends  be- 
yond the  intersecting  claims. — Gheesman  v.  Hart,  16 
M.  R.  263.  Lines  may  be  lawfully  extended  over,  and 
stakes  set  upon,  prior  locations  so  as  to  secure  paral- 
lel end  lines,  or  for  any  other  legitimate  purpose. — 
Del  Monte  Case,  171  U.  8.  55. 


CROSS  LODES. 


Priority  of  Title  Controls. 

R.  S.  Sec.  2336. — Where  two  or  more  veins  intersect 
or  cross  each  other,  priority  of  title  shall  govern,  and  such 
prior  location  shall  be  entitled  to  all  ore  or  mineral  con- 
tained within  the  space  of  intersection ;  but  the  subse- 


CROSS  LODES.  139 

quent  location  shall  have  the  right  of  way  through  the 
space  of  intersection  for  the  purposes  of  the  convenient 
working  of  the  mine.  *  *  *  — Sec.  1^  A.  C.  May  10,  1872. 

The  above  section  being  a  single  section  of  an 
entire  Act,  must,  if  ambiguous,  be  compared  with  all 
other  sections  of  the  same  Act  which  have  any  bear- 
ing on  the  subject  matter.  The  only  other  pertinent 
portion  of  the  Act  is  that  part  of  section  2322  (Sec. 
3,  A.  C.  May  10,  1872),  which  says: 

"The  locators  of  all  mining  locations  *  *  *  where 
no  adverse  claim  exists  on  the  tenth  day  of  May,  eighteen 
hundred  and  seventy-two,  *  *  *  shall  have  the  ex- 
clusive right  of  possession  and  enjoyment  of  all  the  sur- 
face included  within  the  lines  of  their  locations,  and  of  all 
veins,  lodes,  and  ledges  throughout  their  entire  depth,  the 
top  or  apex  of  which  lies  inside  of  such  surface-lines  ex- 
tended downward  vertically.." — *  *  *  * 

In  the  case  of  lodes  located  under  or  before  the 
Act  of  1866,  a  right  of  way  is  clearly  granted  under 
the  two  sections  above  quoted.  Those  old  claims  held 
but  a  single  vein,  and  the  owners  of  any  other  vein, 
had  a  right  to  work  up  to  the  very  wall  of  the  crossed 
vein.  Such  being  the  case,  the  Act  of  May  10,  1872, 
merely  added  the  easement  of  the  right  to  work 
through  the  crossed  vein;  but  as  to  lodes  located  un- 
der the  Act  of  May  10,  1872,  the  matter  is  complicated 
by  the  fact  that  all  claims  under  that  Act  have  a 
width  ranging  from  50  to  600  feet,  and  that  all  veins 
within  such  distance  have  been  granted  to  the  owner 
of  the  claim  as  fully  as  the  vein  upon  which  his  dis- 
covery is  sunk. 

Title  to  the  Space  of  Intersection. 

The  question  has  been  often  stated  in  this  form: 
— "Does  the  space  of  intersection,  mentioned  in  sec- 
tion 2336,  mean  the  space  of  the  actual  crossing  of 
the  veins — or  the  space  through  which  the  cross  lode 
runs  from  side  line  to  side  line?"  But  this  question 
does  not  reach  the  merits  and  is  based  upon  a  mis- 
understanding or  a  want  of  due  attention  to  the 
words  of  the  Act. 

If  the  cross  lode  have  the  right  of  crossing  at 
the  point  of  actual  vein  crossing  only,  how  is  it  to 


140  CROSS  I.ODKS. 

be  worked  across  the  ground  between  the  side  line 
and  the  space  of  actual  vein  intersection?  Of  what 
avail  would  such  right  of  crossing  be  to  those  own- 
ing no  easement  or  estate  in  such  intervening  ground? 
It  is  clear  then  that  to  make  the  Act  have  a  just  and 
sensible  meaning,  the  "space  of  intersection"  refers 
to  the  whole  distance  from  side  line  to  side  line,  and 
this  being  conceded,  the  real  question  remains:  "To 
whom  does  the  cross  vein  belong,-  throughout  the 
space  of  intersection  from  side  line  to  side  line?" 

Sec.  2322  had  already  granted  it  to  the  prior 
owner  of  the  crossed  lode.  It  was  within  the  power 
of  Congress,  by  a  subsequent  clause,  to  have  made  the 
crossing  lode  an  exception  carved  out  of  the  general 
grant  of  the  words  of  the  previous  section;  but  has 
it  attempted  so  to  do?  Tlie  only  grant  of  section 
2336  is,  the  right  of  way,  which  of  itself  implies  that 
it  is  not  a  grant  of  the  vein,  but  of  an  easement  to 
which  the  estate  of  the  prior  location  is  made  servi- 
ent. 

To  give  any  part  of  the  space  of  intersection  to 
the  holder  of  the  later  location  would  be  to  take  from 
the  older  location  something  already  granted  to  it. 
To  create  an  exception  out  of  his  grant  as  he  orig- 
inally takes  it  under  Act  of  Congress  would  require 
in  the  wording  of  the  Act  expressions  as  strong  as 
are  required  to  create  an  exception  in  a  deed.  An 
exception  is  equivalent  to  the  reconveyance  of  land 
already  conveyed.  A  right  of  way  is  not  an  excep- 
tion, but  a  reservation  which  may  be  inferred  from 
any  wording  indicating  an  intention  to  create  an 
easement.  It  takes  nothing  from  the  body  of  the 
grant  of  the  first  locator;  but  compels  the  first  loca- 
tor to  use  or  hold  his  grant  or  claim  subject  to  a 
right  or  privilege  to  the  junior  or  overlapping  claim- 
ant, of  reaching  the  other  end  of  his  claim  by  passage 
through  the  senior  location. 

It  seems  to  the  author,  from  the  above  reasoning, 
that  a  cross  lode  takes  no  estate  in  the  claim  it 
crosses  and  has  no  rights  as  against  the  crossed  claim 


CROSS  LODES.  141 

except  the  mere  right  to  drift  through,  leaving  all 
ore  as  the  property  of  the  crossed  claim. 

Decisions  As  to  Eights  of  Cross  Lodes. 

All  recent  cases  are  in  agreement  with  these 
views. — Par  dee  v.  Murray,  15  M.  R.  515 ;  Watervale  Co. 
v.  Leach,  33  Pac.  418;  Wilhelm  v.  Silvester,  35  Pac. 
997;  Calhoun  Go.  v.  Ajax  Go.  59  Pac.  607;  the  latter 
overrules  the  case  of  Branagan  v.  Dulaney,  8  Golo. 
408,  which  had  been  so  often  cited  against  the  above 
construction.  The  Ajax  case  was  affirmed  in  182 
U.  S.  499. 

Cross  Surveys — Veins  Merging. 

The  fact  that  the  surveys  cross  does  not  neces- 
sarily raise  the  question  of  cross  lodes.  There  must 
be  an  actual  crossing  of  the  veins,  and  if  one  vein 
unite  with  the  other  on  the  strike  the  vein  beyond 
the  point  of  union  belongs  to  the  holder  of  the  older 
patent. — Lee  v.  Stahl,  16  M.  R.  152;  Book  v.  Justice 
Go.  58  Fed.  106;  17  M.  R.  — . 

There  must  be  two  separate  mineral  veins  to 
make  a  crossing  within  the  law. — Morgenson  v.  Mid- 
dlesex Go.  11  Golo.  176;  Omar  v.  Soper,  Id.  389. 

The  Burden  of  Proof  is  on  the  party  alleging  a 
crossing. — Lee  v.  Stahl,  16  M.  R.  152. 

No  Right  to  Enter  to  Prove  Crossing. 

The  actual  crossing  of  lodes  is  more  often  a 
matter  of  conjecture  than  proof,  and  upon  the  con- 
jecture of  a  crossing  a  party  has  no  right  to  enter 
upon  the  crossed  claim  to  prospect  for  his  lode  or 
prove  the  crossing.  The  latter  clause  of  §  2322  con- 
tains a  proviso  against  the  use  of  the  surface  in  any 
such  case.  The  right  of  crossing  can  be  exercised 
only  by  following  the  vein  from  some  point  outside 
of  the  crossed  claim  to  a  point  where  it  enters  the 
crossed  claim,  and  thence  by  drift  along  the  same. — 
Atkins  v.  Hendree,  2  M.  R.  328. 

Settlements  Between  Cross  Lode  Owners  will  be 
upheld,  although  they  were  at  the  time  ignorant  of 


142  VEINS  UNITING  ON  DIP. 

their  strict  legal  rights. — Coffee  v.  Emigh,  15  Colo. 
184. 

As  Between  Grantor  and  Grantee  the  grantor  can- 
not claim  any  implied  right  to  cross  the  granted 
ground  on  pretense  of  following  a  cross  vein.  He 
has  conveyed  all  veins  apexing  within  the  granted 
area. — Stinchfield  v.  Gillis,  40  Pac.  98. 


VEINS  UNITING  ON  THE  DIP. 


Prior  Location  Takes  Title. 

R.  S.  Sec.  2336. — *  *  *  Where  two  or  more  veins 
unite,  the  oldest  or  prior  location  shall  take  the  vein  below 
the  point  of  union,  including  all  the  space  of  intersection. — 
Sec.  Ik,  A.  C.  May  10,  1872. 

The  above  paragraph  follows  that  part  of  §  2336, 
which  says  that  "priority  of  title  shall  govern"  in 
case  of  interference  of  veins  on  their  strike." 

It  often  happens  that  on  developing  two  veins  by 
shafts  from  surface  they  are  found  to  unite  as  they 
go  down.  A  vertical  section  of  the  two  lodes  in  such 
case  gives  the  form  of  the  letter  Y.  Where  both 
claims  are  possessory,  the  older  title,  i.  e.,  the  older 
discovery  properly  followed  by  location  and  record 
takes  the  vein  below  the  point  of  union.  If  both 
are  patented,  or  if  one  only  is  patented,  the  obvious 
question  is:  Does  the  first  patent  hold  on  account 
of  failure  of  the  first  discovery  to  adverse?  or  does 
the  first  discovery  hold? 

In  the  case  of  the  Cham.pion  Co.  v.  Cons.  Wyo- 
ming Co.  16  M.  R.  145,  the  two  lodes  in  controversy 
so  came  together  at  about  500  feet  in  depth.  The 
Wyoming  lode  was  patented  in  1874.  The  Philip 
lode  claimed  to  be  a  location  prior  in  date  to  the 
Wyoming,  but  was  not  able  to  prove  such  allegation, 
and  therefore  had  no  state  of  facts  upon  which  the 
court  could  properly  decide  this  point  and  interpret 
the  statute.  Still,  they  intimated  that  the  older  pos- 


VEINS  UNITING  ON  DIP.  143 

sessory  title  would  hold  without  regard  to  patent.  In 
the  case  of  Lee  v.  Stahl,  16  M.  R.  152,  which  involved 
the  rights  of  cross  lodes  only,  the  court  in  argument 
leaned  to  the  same  construction. 

But  the  point  has  been  since  expressly  decided 
and  always  to  the  same  result,  to  wit:  in  favor  of  the 
older  location. — Little  Josephine  Go.  v.  Fullerton,  58 
Fed.  521;  17  M.  R.  — ;  Cons.  Wyoming  Co.  v.  Cham- 
pion Co.  63  Fed.  540. 

Where  two  veins  apexing  in  two  patents  were 
alleged  to  unite  after  they  had  come  by  the  dip  un- 
der a  third  patent  it  was  held  that  the  third  patent 
had  no  title  to  the  vein  and  that  the  controversy  must 
arise  between  the  patents  which  covered  the  apexes. — 
Roxanna  Co.  v.  Cone,  100  Fed.  168. 

Relation — Presumption. 

Even  if  suspected,  such  union  would  rarely  be 
provable  in  time  to  support  an  adverse  claim,  and 
even  if  known  an  adverse  claim  could  not  be  brought 
because  an  adverse  is  allowed  only  where  there  is  a 
surface  conflict. — 6  L.  D.  320.  The  doctrine  of  rela- 
tion back  to  discovery,  therefore,  applies,  but  the 
date  of  discovery  and  of  the  respective  acts  of  loca- 
tion are  open  to  parol  proof.  If  the  union  becomes 
known  or  comes  in  contest,  as  it  generally  does  after 
both  lodes  are  patented,  there  exists  a  presumption 
in  favor  of  each  that  it  had  a  valid  discovery  and  lo- 
cation at  the  date  of  entry,  but  there  is  no  conclusive 
presumption  that  the  date  of  discovery  or  of  location 
claimed  by  the  recorded  location  certificate  upon 
which  the  patent  issued  is  the  true  date. — St.  Louis 
Co.  v.  Kemp,  11  M.  R.  673;  2  Lindley,  §  730,  783;  Last 
Chance  Co.  v.  Tyler  Co.  61  Fed.  557.  Conclusive  pre- 
sumptions binding  on  all  parties  are  fixed  only  where 
the  party  to  be  bound  has  had  opportunity  to  have 
his  day  in  court. — Uinta  Co.  v.  Creede  Co.  119  Fed. 


144  .  SIDE  VEINS. 


SIDE  VEINS  WITHIN  LOCATION  LINES 
BEFORE  MAY  10,  1872. 


Congressional  Bounty  or  Confirmation. 

R.  S.  Sec.  2328. — Applications  for  patents  for  mining 
claims  under  former  laws  now  pending  may  be  prosecuted 
to  a  final  decision  in  the  General  Land  Office ;  but  in  such 
cases  where  adverse  rights  are  not  affected  thereby,  patents 
may  issue  in  pursuance  of  the  provisions  of  this  chapter ; 
and  all  patents  for  mining-claims  upon  veins  or  lodes  here- 
tofore issued  shall  convey  all  the  rights  and  privileges  con- 
ferred by  this  chapter  where  no  adverse  rights  existed  on 
the  tenth  day  of  May,  eighteen  hundred  and  seventy-two. — - 
Sec.  9,  A.  C.  May  10,  1872. 

Limited  to  Single  Vein. 

Under  the  original  Congressional  Act  of  1866, 
no  vein  except  the  first  claimed  was  covered  by  the 
location  or  conveyed  by  the  patent. 

A  section  of  Colorado  Territorial  Act  of  Febru- 
ary 9,  1866,  attempted  to  donate  to  the  locator  all 
veins  within  twenty-five  feet  of  the  center  of  the  first 
discovered  lode;  but  that  section  is  generally  deemed 
to  have  been  in  excess  of  the  power  of  the  Terri- 
torial Legislature,  in  allowing  to  the  claimant  por- 
tions of  the  public  domain  which  he  had  neither  dis- 
covered nor  appropriated. 

A  lode  claim,  therefore,  located  before  May  10, 
1872,  originally  covered  but  one  vein,  and  a  patent  is- 
sued before  that  date  covered  but  one  vein. — Blake 
v.  Butte  Go.  9  M.  R.  503;  Eclipse  Go.  v.  Spring,  59 
Gal.  304. 

Side  Veins  Donated  to  Old  Claims  Since  1872. 

But  by  the  A.  C.  of  1872,  which  gave  to  all  new 
locations  and  future  patents  the  benefit  of  every- 
thing between  their  side  lines,  it  was  added  that  all 
old  locations  and  all  patents  under  the  old  Act  should 
have  the  same  benefit,  always  saving  any  rights 


SIDE  -VEINS.  145 

which  had  intervened  before  the  passage  of  the  Act 
of  1872.— #.  8.  §  2328. 

The  result  of  this  Act  is,  that  a  location  properly 
made  before  May  10,  1872,  or  a  patent  issued  before 
that  date,  covers  all  side  and  other  interfering  veins 
practically  to  the  same  extent,  and  as  fully  as  loca- 
tions and  patents  under  the  present  law;  always  sav- 
ing the  exception  in  the  section  last  above  cited. — 
Pardee  v.  Murray,  15  M.  R.  515;  Walrath  v.  Champion 
Co.  63  Fed.  552. 


SIDE  VEINS  WITHIN  LOCATION  LINES 
SINCE  MAY  10,  1872. 


All  Veins  Apexing  Within  the  Lines. 

R.  S.  Sec.  2322. — The  locators  of  all  mining  locations 
heretofore  made  or  which  shall  hereafter  be  made,  *  *  -* 
where  no  adverse  claim  exists  *  *  *  shall  have  the 
exclusive  right  of  possession  and  enjoyment  of  all  the  sur- 
face included  within  the  lines  of  their  locations,  and  of 
all  veins,  lodes,  and  ledges  throughout  their  entire  depth, 
the  top  or  apex  of  which  lies  inside  of  such  surface-lines 
extended  downward  vertically,  *  *  *  — Sec.  3,  A.  C. 
May  10,  1872. 

Colorado  Act  Conforming  to  Above  Section. 

M.  A.  S.  Sec.  3156. — The  location  or  location  certifi- 
cate of  any  lode  claim  shall  be  construed  to  include  all  sur- 
face ground  within  the  surface  lines  thereof,  and  all  lodes 
and  ledges  throughout*  their  entire  depth,  the  top  or  apex 
of  which  lie  inside  of  such  lines  extended  downward,  ver- 
tically, with  such  parts  of  all  lodes  or  ledges  as  continue 
by  dip  beyond  the  side  lines  of  the  claim,  but  shall  not  in- 
clude any  portion  of  such  lodes  or  ledges  beyond  the  end 
lines  of  the  claim  or  the  end  lines  continued,  whether  by 
dip  or  otherwise,  or  beyond  the  side  lines  in  any  other  man- 
ner than  by  the  dip  of  the  lode. — Sec.  9,  Feb.  IS,  187$. 

Surface  Lines  and  Apex  Within  Them  Define  the 

Claim. 

Under  the  law,  as  it  has  existed  since  May  10, 
1872,  with  or  without  any  State  Statute  like  the 


146  DEPARTURE  FROM  SIDE  LINES. 

above  Colorado  Act,  which  is  only  a  concession  to 
tjie  admitted  force  of  the  higher  law  of  Congress,  it 
is  clear  that  all  veins  whose  tops  or  apices  are  within 
the  lines  of  the  claim  go  with  the  lode  which  gives 
the  name  to  the  claim;  and  the  surface  lines,  rather 
than  identity  of  the  veins,  are  made  to  control  the 
extent  of  the  claim,  and  to  fix  the  boundaries  be- 
tween adverse  parties. — Book  v.  Justice  Co.  58  Fed. 
109;  17  M.  R.  — ;  Doe  v.  Waterloo  Go.  54  Fed.  935. 

The  possible  exceptions  to  this  general  assertion 
are: 

First — In  regard  to  what  are  commonly  called 
cross  lodes;  p.  138. 

Second — Where  the  outcrops  of  two  apparent 
veins  appear  on  two  separate  lines  at  the  surface,  but 
in  their  downward  course  such  veins  dip  into  each 
other,  unite  and  form  a  single  vein;  p.  142. 

Third — Instances  where  a  location  on  the  dip 
may  have  cut  off  the  right  of  a  later  appropriator  on 
the  apex  to  follow  beyond  his  side  lines  extended 
vertically  downward;  p.  163. 

Fourth — Locations  and  patents  before  May  10, 
1872,  where  adverse  rights  had  intervened  so  as  to 
prevent  them  from  taking  the  benefit  of  the  grant  of 
side  veins  under  the  Act  of  that  date;  p.  144. 

Fifth — Lodes  located  before  May  10,  1872,  are 
apparently  excepted  from  the  grant  of  an  overlap- 
ping patent. — Eclipse  Co.  v.  Spring,  59  Gal.  304;  but 
see  Lee  v.  Stahl,  16  M.  R.  152. 

One  Set  of  End  Lines  for  Side  Veins. 

See  p.   166. 


DEPARTURE  OF  LODE  FROM  SIDE  LINES. 

Statement  of  the  Point. 

That  the  vein,  and  not  the  surface,  is  the  mate- 
rial grant  of  a  patent  to  a  mining  claim  has  never 
been  disputed;  nor  can  it  be  denied  that  it  is  the 
intention  both  of  the  purchaser  in  buying,  and  the 


DEPARTURE  FROM  SIDE  LINES.  147 

Government  in  selling,  to  deal  with  the  mineral  de- 
posit; the  surface  being,  in  itself,  comparatively 
worthless  to  either.  And  if  the  case  lay  between 
the  Government  and  the  purchaser  alone,  this  mani- 
fest intention  might  prevent  any  attempt  to  confine 
the  party  to  an  erroneous  survey,  giving  him  only 
valueless  surface,  notwithstanding  the  material  fact 
that  it  is  the  patentee,  and  not  the  United  States, 
who  has  chosen  the  lines  which  produce  the  mischief. 
— Patterson  v.  Hitchcock,  5  M.  R.  542. 

But  it  is  the  rights  of  innocent  third  parties, 
holding  claims  beyond  the  located  or  patented  side 
lines,  which  has  rendered  this  question  so  important, 
and  which  must  result  in  maintaining  the  consistent 
construction  already  given  to  the  Act  of  Congress, 
confining  every  claim  to  its  own  lines;  though  even 
if  it  were  a  matter  of  indifference,  this  holding  re- 
quires no  forced  construction  of  the  Acts  under  ordi- 
nary rules  of  interpretation,  and  had  been  the  con- 
stant ruling  of  the  Appellate  and  Circuit  Courts 
before  its  confirmation  by  the  Federal  Supreme 
Court. 

Uniformity  of  Rulings  on  the  Point. 

This  question,  however,  with  singular  unanim- 
ity has  been  set  at  rest  by  the  decisions  of  many 
courts.  It  is  now  beyond  controversy  that  the  mo- 
ment the  apex  of  a  vein  leaves  either  side  line  of  its 
survey  the  locator  has  no  further  claim  thereto,  on 
the  strike,  beyond  such  point  of  departure. — Wolfley 
v.  Lebanon  Co.  IS  M.  R.  282;  Johnson  v.  Buell,  9  M. 
R.  502;  The  Flagstaff  case,  9  M.  R.  607;  The  Golden 
Fleece  case  (Nevada),  1  M.  R.  120. 

These  decisions  apply  equally  to  patented  and 
unpatented  claims,  and  have  been  universally  ac- 
ceded to  as  the  only  construction  which  would  give 
to  a  mining  claim  the  same  certainty  of  title  which 
belongs  to  other  classes  of  real  estate  which  are  free 
from  the  complications  of  dips  and  departures. 


148  DEPARTURE  PROM  SIDE  LINES. 

Facts  of  the  Golden  Fleece  Case. 

The  case  from  Nevada  is  singularly  illustrative 
of  the  injustice  which  would  result  from  a  contrary 
holding. 

The  Golden  Fleece  Lode  was  surveyed  and 
staked  in  1874,  upon  a  vein  supposed  to  run  north- 
west and  southeast.  The  location  claiming  1,500  feet 
ran  due  northwest  and  southeast,  and  600  feet  width. 
Afterwards  developments  by  its  workings  and  on  the- 
Leonard  Lode,  whose  discovery  was  about  800  feet 
to  the  southwest,  showed  that  the  vein  really  ran  at 
right  angles  to  its  originally  supposed  course,  The 
Leonard  Lode  having  applied  for  patent,  the  Golden 
Fleece  made  a  second  survey  at  right  angles  to  the 
first  which  of  course  embraced  all  the  workings  and 
croppings  on  the  Leonard,  and  then  filed  its  adverse 
claim,  based  on  such  relocation.  But  it  was  held 
that  The  Golden  Fleece  must  be  confined  to  its  orig- 
inal location  and  to  that  part  of  the  vein  within  the 
lines  of  such  original  location. 

Same  Holding  on  Old  50-Foot  Patents. 

The  patent  in  the  Wolfley  case  was  issued  under 
the  Act  of  1866,  so  that  the  decision  necessarily  ap- 
plies to  all  patents;  because  the  argument  in  favor 
of  following  the  vein,  under  the  Act  of  1866,  was 
much  stronger  than  in  the  case  of  patents  under 
the  later  Act. — Lamed  v.  JenMns,  113  Fed.  634. 

Not  Color  of  Title. 

In  a  later  suit,  upon  the  same  patent  construed  in 
the  Wolfley  case,  it  was  held  that  where  the  patent 
owner  had  followed  his  vein  outside  and  had  held  it 
adversely  for  five  years,  that  he  had  not  even  such 
"color  of  title"  as  would  operate  to  allow  him  the 
benefit  of  the  statute  of  limitations. — Lebanon  Co.  v. 
Rogers,  8  Colo.  34. 

Surface  Location  Beyond  Point  of  Vein  Departure. 

If  the  location  fail  to  cover  the  vein,  not  only 

is  the  vein  lost  after  it  leaves  the  side  lines,  but  that 

portion   of   the   location   which   extends   beyond   the 


DEPARTURE  PROM  SIDE  LINES.  149 

point  where  it  loses  the  vein,  has  been  decided  to  be 
defeasible,  if  not  void,  having  no  discovery  vein 
upon  which  to  base  any  further  claim  to  either  sur- 
face or  other  veins  which  may  lie  within  its  lines. 
— Patterson  v.  Hitchcock,  5  M.  R.  542.  See  Plat,  p.  25. 

The  reason  of  this  decision  is  the  wording  of 
the  Act  of  Congress  (§  2320)  restricting  a  lode 
claim  to  a  certain  number  of  feet  on  "each  side  of 
the  middle  of  the  vein" — so  that  if  the  vein  is  no 
longer  found  within  the  lines  of  the  claim  the  loca- 
tor [has  no  basis  upon  which  to  hold  any  number 
of  feet,  beyond  the  point  of  departure.  Discarding 
this  language  of  the  statute,  the  case  of  Watervale 
Go.  v.  Leach,  33  Tac.  418;  17  M.  R.  — ,  holds  that  a 
lode  location  need  pay  no  attention  to  the  strike  and 
the  only  consequence  of  failure  to  plant  it  on  the 
strike  is  to  lose  the  right  to  follow  on  the  dip. 

The  decisions  on  this  point  do  not  apply  to  pat- 
ented claims;  Argonaut  Co.  v.  Turner,  48  Pac.  685;  18 
M.  R.  — ,  and  there  is  an  initial  presumption  or 
prima  fades  that  the  survey  covers  the  vein  until 
the  contrary  is  affirmatively  proved. — Armstrong  v. 
Lower,  15  M.  R.  631. 

The  reason  that  a  patented  claim  is  valid  to  its 
full  extent  for  what  it  does  cover  is  that  the  patent 
is  of  a  "piece  of  land,"  with  all  the  surface  its  lines 
include;  the  patent  is  supposed  to  have  been  based 
on  a  location  made  on  a  vein,  with  only  the  statutory 
width  on  either  side,  and  if  in  fact  it  was  otherwise, 
or  if  the  vein  departed  before  it  reached  the  end  line, 
it  is  too  late  after  patent  for  any  adverse  claimant  to 
set  up  any  such  variations  to  defeat  the  operation  of 
its  grant  to  the  entire  surface  and  to  such  part  of 
the  vein  as  it  does  cover. — Gleeson  v.  Martin  White 
Co.  9  M.  R.  429. 


150  VEIN  WIDER  THAN  PATENT. 


VEIN  WIDER  THAN  PATENT. 


In  the  unreported  case  between  the  Colorado 
Central  and  the  Equator  Lode  in  the  U.  S.  Court  at 
Denver,  each  claimed  under  a  50  foot  patent,  the 
vein  being  admittedly  100  feet  wide.  The  Court  held 
that  the  older  patent,  the  Equator,  could  hold  only 
to  its  side  line  and  could  not  claim  extralateral 
rights  on  its  dip  underneath  the  Colorado  Central 
Patent.  In  Bullion  Co.  v.  Eureka  Co.  11  Pac.  515 
(Utah),  the  majority  of  the  Court  took  the  opposite 
view. 

In  the  late  case  of  Empire  Co.  v.  Bunker  Hill  Co. 
114  Fed.  417,  the  Court  held  that  where  there  were 
two  patents,  one  covering  the  hanging  and  the  other 
the  foot  wall,  that  the  prior  location  had  extralateral 
rights  and  took  the  whole  vein  except,  of  course,  the 
segment  within  the  vertical  lines  of  the  later  loca- 
tion. The  case  of  St.  Louis  Co.  v.  Montana  Co.  104 
Fed.  664,  which  it  cites,  is  to  the  same  effect. 

A  discovery  shaft  may  be  the  valid  basis  of  a 
location  although  it  fails,  being  up  to  the  edge  of 
appropriated  ground,  to  cover  the  whole  width  of  the 
lode.— Larkin  v.  Upton,  144  U.  S.  19;  17  Pac.  782. 


LODES,  VEINS  AND  LEDGES. 


Definition  of  the  Terms. 

The  word  "lode"  and  the  word  "vein"  are  used 
indiscriminately  in  the  Acts  of  Congress*  as  well  as 
in  the  popular  language,  to  signify  the  same  thing. 
In  Bainbridge  on  Mines,  the  text,  page  2,  defines  them 
in  the  same  sentence:  "A  mineral  lode  or  vein  is  a 

*See  the  text  of  Sec.  2320,  p.  20',  Sec.  2322,  p.  Itf. 


LODES,  VEINS  AND  LEDGES.  151 

flattened  mass  of  metallic  or  earthy  matter,  differing 
materially  from  the  rocks  or  strata  in  which  it  oc- 
curs." A  note  to  the  same  suggests  the  use  of  the 
word  "vein"  as  incorrect,  when  applied  to  such  de- 
posits as  those  of  anthracite  coal.  Still  the  word 
"vein"  is  universally  used  to  include  coal,  and  other 
flat  and  non-metallic  deposits,  while  the  word  "lode" 
is  not  so  used.  This  is  the  principal  distinction  in 
the  use  of  the  words.  The  word  "lode"  is  of  Cornish 
origin  (Bullion  Go.  v.  Croesus  Co.  2  Nev.  176); 
"vein"  is  Latin.  In  the  Eureka  case,  9  M.  R.  578, 
where  it  is  said,  every  known  definition  was  pre- 
sented to  the  Court,  the  opinion  does  not  intimate 
any  difference  in  their  meaning,  but  says:  "Those 
Acts  give  no  definition  of  the  term  'lode.'  They 
use  it  always  in  connection  with  the  term  'vein.'  " 

The  word  "ledge"  came  into  use  in  California 
after  the  discovery  of  quartz  mines,  because  they 
were  generally  found  in  the  hills  above  the  gulches, 
and  were  often  identified  with  protruding  outcrop. 
The  word  "reef,"  not  used  in  the  Acts,  is  the  popular 
equivalent  for  lode  or  ledge  in  Australia  and  South 
Africa.  The  word  "range"  is  much  used  in  the  lead 
districts  of  the  Mississippi  valley. — Raisbeck  v.  An- 
thony, 41  N.  W.  72. 

Connection  With  Context  of  the  Statute. 

The  only  limitation  or  qualification  in  the  United 
States  Mining  Statutes  in  connection  with  the  words 
"veins  or  lodes"  or  "veins,  lodes  and  ledges,"  is  the 
expression  "of  quartz  or  other  rock  in  place." 

"In  Place." 

These  words  have  been  construed  material  in 
cases  where  the  vein  has  been  found  eroded  or  broken 
up.  In  Stevens  v.  Williams,  1  M.  R.  557,  where  both 
the  overlying  and  underlying  bodies  were  solid,  the 
deposit  was  held  to  be  a  lode  "in  place." 

In  Tabor  v.  Dexter,  9  M.  R.  614,  where  the  loca- 
tion was  on  ore  where  the  overlying  rock  had  been 
eroded,  the  ore  body  remaining  covered  only  with 
wash  or  gravel,  it  was  held  that  the  lode  was  not.  in 


152  LODES,  VEINS  AND  LEDGES. 

place.  A  like  ruling  was  made  in  Leadville  Go.  v. 
Fitzgerald,  4  M.  R.  380.  The  practical  point  in  these 
decisions  is  that  where  a  location  is  claimed  to  be 
upon  the  apex  of  a  lode,  it  must  be  upon  such  apex  at 
a  point  where  it  is  in  place  between  the  original  en- 
closing rocks  to  be  valid  as  such  an  apex  location 
as  will  give  a  right  to  the  dip. 

Rock  in  place  is  contradistinguished  from  the 
soil  or  debris.  It  is  in  place,  though  loose,  broken  or 
disintegrated. — Jones  v.  Prospect  Co.  31  Pac.  642. 

Size  and  Richness  of  Deposit  Not  Material. 

In  North  Noonday  Co.  v.  Orient  Co.  9  M.  R.  531 ', 
SAWYER,  J.,  says:  "A  vein  or  lode  authorized  to  be 
located  is  a  seam  or  fissure  in  the  earth's  crust  filled 
with  quartz,  or  with  some  other  kind  of  rock  in  place, 
carrying  gold,  silver  or  other  valuable  mineral  de- 
posits named  in  the  statute.  It  may  be  very  thin 
and  it  may  be  many  feet  thick,  or  thin  in  places — 
almost,  or  quite  pinched  out,  in  miners'  phrase — and 
in  other  places  widening  out  into  extensive  bodies  of 
ore.  So,  also,  in  places,  it  may  be  quite,  or  nearly, 
barren,  and  at  other  places  immensely  rich.  It  is 
only  necessary  to  discover  a  genuine  mineral  vein 
or  lode,  whether  small  or  large,  rich  or  poor,  at  the 
point  of  discovery  within  the  lines  of  the  claim  lo- 
cated, to  entitle  the  miner  to  make  a  valid  location 
including  the  vein  or  lode."  Its  validity  as  a  thing 
that  may  be  located  does  not  depend  on  what  it  runs. 
— Shreve  v.  Copper  Bell  Co.  28  Pac.  315;  Stinchfield 
v.  Gillis,  30  Pac.  839.  Neither  walls  nor  pay  ore  is 
essential,  but  it  must  show  rock  distinguishable  from 
the  country. — Burke  v.  McDonald,  33  Pac.  49.  The 
fissure  must  be  defined. — Cons.  Wyoming  Co.  v.  Cham- 
pion Co.  63  Fed.  540.  On  the  facts  in  this  case  it  is 
too  late  to  call  one  vein  a  spur  and  the  other  a  main 
vein. — Carson  City  Co.  v.  North  Star  Co.  73  Fed.  601. 

There  Must  Be  More  Than  a  Trace  of  Mineral. 

An  ascertainable  quantity — but  an  assay  of  one 
or  more  ounces  will  suffice. — Stevens  v.  Gill,  1  M.  R. 
519. 


LODES,  VEINS  AND  LEDGES.  153 

Whatever  a  Miner  Would  Follow  with  the  ex- 
pectation of  finding  ore,  or  similar  phrases, 
have  been  adopted  as  a  practical  test  of 
what  is  to  be  considered  a  lode  under  the  Act  of 
Congress. — Eureka  Co.  v.  Richmond  Co.  9  M.  R.  578; 
Harrington  v.  Chambers,  1  Pac.  362.  Any  body  or 
belt  of  mineralized  rock  is  a  lode. — Book  v.  Justice 
Co.  58  Fed.  106;  Shoshone  Co.  v.  Rutter,  87  Fed.  801. 

Different  Degrees  of  Proof. 

In  Fitzgerald  v.  Clark,  42  Pac.  283,  the  distinc- 
tion is  made  between  the  proof  sufficient  upon  which 
to  base  a  location  and  the  proof  required  where  the 
continuity  of  the  vein  is  in  question,  holding  to 
greater  strictness  in  the  latter  case.  The  degree  of 
proof  required,  and  the  use  of  the  words  "consider- 
able distance"  or  "considerable  interval"  in  the  con- 
tinuity, in  the  instructions,  is  discussed  in  Butte  Co. 
v.  Societe,  58  Pac.  111. 

In  Land  Office  Controversies  the  value  of  the  min- 
eral deposit  is  a  matter  immaterial  to  the  govern- 
ment save  in  controversies  between  mineral  and 
non-mineral  claimants. — 21  L.  D.  440. 
Faults  and  pinches  do  not  affect  the  legal  contin- 
uity of  the  vein. — Cheesman  v.  Shreeve,  40  Fed.  793. 
The  mineral  beyond  the  fault  is  a  part  of  the  same 
lode  or  range. — Raisbeck  v.  Anthony,  41  N.  W.  72. 

Show  of  Mineral  by  Seepage. 

While  the  richness  or  poverty  of  the  vein  or  of 
the  seam  or  stratum  of  rock  followed  as  a  vein,  in 
determining  the  question  of  such  rock  being  vein 
matter,  is  not  of  controlling  importance,  yet,  on  prac- 
tical acquaintance  with  the  subject,  it  will  be  seen 
that  such  point  of  relative  value  cannot  be  wholly 
ignored. 

Where  the  opinions  say  that  it  may  be  rich  or 
poor,  they  refer  to  the  well  known  fact  that  true 
veins,  for  long  distances,  are  often  quite  barren. 
But  it  does  not  follow  that  every  seam  of  rock  which 
will  assay  is  necessarily  any  vein  at  all.  For  there  do 


154  LODES,  VEINS  AND  LEDGES. 

exist  seams  which  carry  a  little  mineral  and  yet  are 
not  veins  within  the  geological  or  legal  definition. 
The  mineralization  in  such  cases,  in  some  of  them  at 
least,  is  caused  by  infiltration  of  ore  from  a  true 
vein  or  deposit  along  some  plane  of  cleavage,  or 
along  the  plane  between  two  formations,  or  through 
mere  mechanical  cracks  in  the  rock,  and  all  their 
mineral  is  only  precipitated  or  crystallized  seepage 
from  the  lode  or  deposit  above.  Such  bastard  veins 
have  just  enough  resemblance  to  true  veins  to  be  used 
as  a  pretext  of  title  against  neighboring  locations  on 
the  legitimate  vein.  They  are  generally  lacking  in 
walls,  continuity  and  in  the  normal  uniformity  of 
a  true  vein,  and  yet  may  have  slips  which  are  prac- 
tically indistinguishable  from  walls,  and  have  some 
discolored  matter  and  particles  "of  ore,  just  enough 
to  be  dangerously  similar  to  what  is  of  value  only  as 
it  is  unlike  such  things. 

The  question  of  vein  or  no  vein  in  law,  is,  in 
such  cases,  a  fact  to  be  determined  by  the  jury  under 
the  instructions  of  the  court. — Iron-Silver  Go.  v. 
Mike  d  Starr  Co.  143  U.  8.  394;  Blue  Bird  Co.  v.  Lar- 
gey,  49  Fed.  289. 

Mineral  Bearing  Zone. 

A  broad  formation  impregnated  everywhere 
with  mineral,  but  traversed  by  true  fissures  within 
itself,  cannot  be  considered  as  the  lode;  the  fissures 
within  such  zone  are  the  lodes  and  the  zone  is  the 
country. — Mt.  Diablo -Co.  v.  Callison,  9  M.  R.  616.  Ore 
distributed  generally,  though  unequally,  throughout 
the  entire  mass  of  the  limestone  of  the  mountain  does 
not  constitute  a  continuous  lode  such  as  may  be 
followed  beyond  the  lines  of  its  location. — Hyman  v. 
Wheeler,  15  M.  R.  519.  A  belt  of  porphyry  containing 
mineralized  seams  is  a  lode. — Book  v.  Justice  Co.  58 
Fed.  106;  Shoshone  Co.  v'.  Rutter,  87  Fed.  801.  When 
a  larger  deposit  is  separated  into  distinct  seams  with 
separate  walls,  each  seam  is  a  separate  lode. — Doe  v. 
Waterloo  Co.  54  Fed.  935;  Hayes  v.  Lavagnino,  53 
Pac.  1029. 


LODES,  VEINS  AND  LEDGES.  155 

Ore  in  Pockets,  Vugs  or  other  irregular  and  dis- 
connected occurrences  without  vein  matter  between 
does  not  make  a.  lode. — Cheesman  v.  Snreeve,  40 
Fed.  787.  Nor  ore  bodies  formed  outside  the  fissure. 
— Tombstone  Go.  v.  Way  Up  Co.  1  Ariz.  426. 

Where  the  Continuity  of  the  Ore  Body  Is  Broken 

by  the  contact,  becoming  barren  for  a  consider- 
able distance,  the  legal  extent  of  the  vein  ceases. — 
Stevens  v.  Williams,  1  M.  R.  557;  Leadville 
Co.  v.  Fitzgerald,  4  M.  R.  380.  A  vein  need 
not  be  a  straight  line  nor  uniform  in  dip, 
thickness  or  richness  of  ore.  The  enclosing  cleft  or 
fissure  may  narrow  or  even  close  for  a  few  feet  and 
be  found  further  on.  Its  continuity  may  be  proved 
by  following  either  the  ore  or  the  rock  which  carries 
the  ore.  Slight  proof  of  ore  is  sufficient  where  the 
enclosing  boundaries  are  distinct;  there  need  be  no 
proof  of  such  boundaries  if  the  ore  itself  can  be  fol* 
lowed.  But  if  the  vein  disappear  so  far  or  so  com- 
pletely that  it  cannot  be  recognized  when  it  is  again 
found  or  alleged  to  be  found,  there  is  no  sufficient 
proof  of  continuity. — Iron  Silver  M.  Co.  v.  Cheesman, 
116  U.  S.  530',  followed  substantially  in  Hyman  v. 
Wheeler,  supra,  and  in  the  Cheesman  case,  J^O  Fed. 
787. 
All  Deposits  "in  Place"  Are  Lodes. 

The  uniform  ruling  has  been  that  all  forms  of 
mineral  or  mineral  gangue  in  place,  whether  fissure 
or  contact  veins,  or  impregnations,  or  other  irregular 
deposits,  should  be  construed  to  come  within  the  ex- 
pression "veins  or  lodes"  used  in  the  Act  of  Con- 
gress, and  as  such  to  be  subject  to  location  and  pat- 
ent under  the  Act. — Hayes  v.  Lavagnino,  53  Pac. 
1029.  There  has  been  in  fact  a  concession  that  such 
should  be  the  holding  rather  than  a  contention  to 
the  contrary.  The  substantial  and  contested  point 
has  been  whether  a  location  or  patent  on  certain 
forms  of  deposit  was  entitled  by  virtue  of  including 
the  apex  or  so-called  apex  of  the  vein  or  deposit,  to 
follow  the  vein  or  deposit  beyond  the  side  lines  un- 


156  APEX. 

derneath  the  adjoining  ground  or  claims  of  other 
parties.  This  point  will  be  considered  under  the 
next  heading,  APEX. 


APEX. 


The  Grant  of  the  Apex  Right. 

R.  S.  Sec.  2322. — "The  locators  of  all  mining  loca- 
tions *  *  *  shall  have  the  exclusive  right  of  posses- 
sion and  enjoyment  of  all  the  surface  included  within  the 
lines  of  their  locations,  and  of  all  veins,  lodes,  and  ledges 
throughout  their  entire  depth,  the  top  or  apex  of  which 
lies  inside  of  such  surface-lines  extended  downward  ver- 
tically, although  such  veins,  lodes,  or  ledges  may  so  far 
depart  from  a  perpendicular  in  their  course  downward  as 
to  extend  outside  the  vertical  side-lines  of  such  surface 
locations." 

Limitation  to  Planes  of  Projected  End  Lines. 

"But  their  right  of  possession  to  such  outside  parts 
of  such  veins  or  ledges  shall  be  confined  to  such  portions 
thereof  as  lie  between  vertical  planes  drawn  downward  as 
above  described,  through  the  end-lines  of  their  locations, 
so  continued  in  their  owTn  direction  that  such  planes  will 
intersect  such  exterior  parts  of  such  veins  or  ledges." — Sec. 
S,  May  10,  1872. 

The  mining  Act  of  1866  which  was  the  first  pro- 
vision for  advancing  possessory  claims  to  patent  pro- 
vided that  the  applicant  should  be  granted  "such 
mine,  together  with  the  right  to  follow  such  vein  or 
lode  with  its  dips,  angles,  and  variations,  to  any 
depth,  although  it  may  enter  the  land  adjoining, 
which  land  adjoining  shall  be  sold  subject  to  this 
condition." 

This  clause  has  been  construed  to  allow  the  right 
to  follow  a  lode  patented  under  that  Act  at  right 
angles  to  the  strike,  without  regard  to  end-lines. — 
Argonaut  Go.  v.  Kennedy  Co.  63  Pac.  148. 

The  Act  of  1872  made  a  material  change  by  pro- 
viding that  the  end  lines  of  every  lode  claim  should 
be  parallel  and  that  these  end  lines  protracted  should 
become  bounding  planes  between  which  the  proprie- 


APEX.  157 

tor  of  the  apex  should  have  the  right  to  follow  his 
vein. 

The  theory  of  the  Act  was  that  a  survey  would 
enclose  a  vein  along  its  center  line  from  end  to  end 
and  that  the  end  lines  would  be  at  right  angles 
to  the  strike  of  the  vein.  But  there  are  few  loca- 
tions where  the  miner  is  so  fortunate  as  to  place 
his  stakes  so  as  to  comply  with  such  theory.  The 
course  of  the  lode  when  located  or  when  surveyed 
for  patent  is  generally  a  matter  more  or  less  of  con- 
jecture and  even  if  known,  the  vicinity  of  prior 
claims  may  interfere  with  the  desired  survey  and 
there  being  no  requirement  that  the  side  and  end- 
lines  must  be  at  right  angles  it  is  found  in  prac- 
tice that  many  difficult  points  arise  upon  some  of 
which  by  this  time  there  is  a  satisfactory  judicial 
conclusion. 

The  common  law  grant  of  lands  conveys  the 
surface  and  whatever  minerals  underlie  the  surface 
within  lines  drawn  perpendicularly  downward  to- 
ward the  center  of  the  earth. 

The  apex  clause  in  the  act  modifies  the  common 
law  by  enlargement  to  the  extent  that  the  claimant 
owns  and  may  follow  any  lode  whose  apex  he  cov- 
ers, beyond  his  side  lines  under  land  adjoining.  On 
the  other  hand  he  is  not  the  owner  of  lodes  found 
within  his  lines  extended  downward  vertically  where 
such  lodes  have  their  apexs  outside  of  his  surveyed 
lines. — Roxanna  Co.  v.  Cone,  100  Fed.  168. 

Besides  the  right  to  follow  his  own  vein  on  the 
dip  he  is,  under  the  common  law  grant  of  the  pat- 
ent, owner  of  the  soil  and  rock  within  his  lines 
carried  vertically  downward. 

This  common  law  grant  gives  him  the  ownership 
of  any  deposit  of  mineral  belonging  to  a  class  which 
has  no  apex  and  also  of  any  lode  which  though  it 
have  an  apex,  such  apex  is  not  located  upon  or  is 
surveyed  in  such  form  as  to  give  no  extra-lateral 
rights  to  the  proprietor  of  such  exterior  location. 


158  APEX. 

The  above  general  propositions  must  be  under- 
stood with  "reference  to  certain  limitations  and  con- 
ditions as  follows: 

The  Lode  Must  Have  An  Apex. 

The  outcrop  or  edge  of  a  vein  or  deposit  is 
not  necessarily  its  apex.  The  typical  or  true  fis- 
sure vein  is  a  narrow  zone  of  ore-bearing  rock  de- 
scending indefinitely  in  depth.  It  is  essentially  a 
perpendicular  formation,  though  always,  or  nearly 
always,  inclining  some  degrees  from  true;  this  in- 
clination is  called  its  dip.  The  bounding  planes  of 
such  vein  are  called  its  walls.  The  outcrop  or  near- 
est approach  of  such  a  vein  to  the  surface  is,  and 
always  has  been,  properly  styled  its  apex.  Such 
were  the  veins  generally  known  and  worked  on  the 
Pacific  slope  at  the  time  of  the  passage  of  the  Min- 
ing Acts. 

To  give  to  such  veins  the  right  to  their  dip  was 
essential  to  their  full  use  and  enjoyment. 

Other  classes  of  veins  are  essentially  horizontal 
in  their  formation.  If  found  to  approach  the  per- 
pendicular such  fact  is  accidental,  not  incidental — 
occasional  and  rare,  not  usual  or  normal.  They  may 
be,  like  coal,  a  layer  of  rock  itself  constituting  a 
separate  geological  stratum;  or  they  may  be  a  fill- 
ing between  the  planes  of  contact  of  two  dissimilar 
formations;  or  they  may  be  impregnations  diffused 
irregularly  through  a  broad  zone.  Such  deposits  are 
called  beds  or  even  fields,  terms  obviously  inappli- 
cable to  perpendicular  deposits.  Their  upper  bound- 
ary rock  is  commonly  and  properly  called  the  roof — 
rarely  the  wall;  and  while  they  may  have  an  out- 
crop, such  outcrop  was  never  known  among  miners 
as  an  "apex"  until  the  use  of  such  term  in  the 
Mining  Acts  induced  the  attempt  to  abuse  the  term 
by  imposing  it  upon  the  outcrop  of  horizontal  forma- 
tions. 

The  term  itself  means  the  top  or  highest  point, 
and  has  no  signification  when  applied  to  horizontal 
deposits. 


APEX.  159 

In  the  case  of  Duggan  v'.  Davey,  26  N.  W.  901 
(Dakota),  where  an  eight-degree  vein  having  its  out- 
crop on  the  side  of  a  hill  was  claimed  throughout 
its  entire  extent  by  those  who  had  their  location 
upon  the  outcrop,  the  court  ruled  that  such  lode 
had  no  apex  and  that  a  location  on  the  dip,  although 
made  after  a  location  on  the  outcrop,  was  valid,  and 
that  the  outcrop  claim  could  not  follow  beyond  its 
side  lines. 

The  case  of  Gilpin  v.  Sierra  Nevada  Go.  23  Pac. 
547,  also  intimates  that  blanket  veins  cannot  claim 
to  have  an  apex  under  the  Mining  Acts.  The  in- 
clines on  the  deposit  in  that  instance  as  worked 
ran  from  the  surface  up,  instead  of  down. 

In  the  Leadville  and  Aspen  cases  arising  upon 
veins  of  the  character  last  above  described,  in  the 
United  States  Circuit  Court  at  Denver,  any  such  dis- 
tinction as  above  made  has  not  been  recognized.  But 
the  strict  ruling  on  other  points,  that  there  should 
have  been  no  prior  location  on  the  dip;  that  the  apex 
location  must  be  made  on  a  vein  in  place,  with  solid 
matter  both  above  and  below  the  vein,  and  the  neces- 
sity of  having  the  apex  parallel  to  the  side,  and 
not  parallel  to  the  end  lines,  which  is  a  practical 
impossibility  when  the  real  deposit  is  a '  field,  bed 
or  basin,  with  a  more  or  less  circular  rim  or  out- 
crop, have  circumscribed  and  practically  defeated 
most  attempts  to  follow  such  veins  on  their  dip. 

The  strength  of  this  position  is  increased  by  an 
attempt  to  apply  the  apex  law  to  such  deposits  as 
the  lead  and  zinc  beds  at  Joplin,  Missouri.  There  the 
country  for  miles  is  underlaid  by  a  stratum  carrying 
zinc  and  lead  ore.  The  miner  starts  a  shaft  in  the 
open  prairie  without  any  indications  whatever,  of 
mineral,  and  at  a  certain  depth  confidently  expects 
to  pierce  this  ore-bearing  stratum  which  is  substan- 
tially a  flat  underlying  deposit,  the  outcrop  of  which 
may  be  miles  distant — if  it  have  any  outcrop  at  all 
it  is  only  when  some  bluff  or  ravine  would  expose 
the  edge  of  the  bed  at  the  surface.  As  to  such  de- 
posits it  is  obvious  that  there  is  no  such  thing  as 


160  APEX. 

locating  a  claim  so  many  feet  on  each  side  of  the 
center  of  the  vein,  for,  as  the  Department  holds: 
"The  apex  of  the  Lode  is  co-extensive  with  the  side 
lines."— 29  L.  D.  689.  In  Iron  8.  Co.  v.  M.  &  8.  Co. 
143  U.  8.  894,  the  opinion  refers  to  this  distinction 
and  recognizes  the  validity  of  such  blanket  lode 
locations,  treating  this  incident  of  no  apex  proper  as 
an  item  of  minor  importance. 

The  End  Lines  Must  Be  Parallel. 

When  we  claim  the  right  to  follow  a  vein  on 
its  dip  as  it"  leaves  its  side  lines  and  plunges  into 
the  earth  it  is  obvious  that  we  are  at  once  deal- 
ing with  a  third  dimension  rarely  referred  to  in  sur- 
face grants.  It  is  also  obvious  that  unless  this  third 
dimension  is  guided  by  parallel  planes  the  claim  will, 
if  the  end  lines  diverge,  extend  indefinitely  as  it 
goes  down.  If  they  converge,  it  would,  like  a  wedge, 
diminish  to  a  line.  The  statute  therefore  in  terms 
requires  end  lines  to  be  parallel  and  that  require- 
ment has  no  reasonable  meaning  except  as  taken  in 
connection  with  the  right  to  follow  the  lode  on  the 
dip.  If,  therefore,  the  locator  fail  or  neglect  to 
make  his  end  lines  parallel  he  is  in  disobedience  of 
the  terms  of  the  Act,  by  either  fault  or  misfortune, 
and  has  no  right  to  this  statutory  donation.  It 
was  so  ruled  in  Montana  Co.  v.  Clark,  16  M.  R.  80, 
where  the  claim  was  surveyed  as  a  triangle  which 
could  not  geometrically  have  two  parallel  lines.  The 
same  in  the  Elgin  case,  15  M.  R.  641,  which  had  a 
survey  in  the  shape  of  a  horseshoe.  In  both  these 
cases  the  reason  for  the  parallelism  of  end  lines  is 
fully  stated. 

The  Eureka  case,  9  M.  R.  578,  has  been  cited 
(Hor -swell  v.  Ruiz,  15  M.  R.  489)  as  ruling  that  the 
requirement  of  end  lines  is  directory  merely  and 
that  no  consequences  attach  to  its  neglect,  but  the 
further  details  of  the  opinion  (on  page  596)  much 
qualify  the  words  to  that  effect  used  on  page  593. 
We  can  see  no  reason  why  a  survey  without  parallel 
end  lines  should  be  void  for  the  ground  within  its 


APEX.  161 

lines,  nor  can  we  conceive  that  it  should  be  allowed 
extralateral  rights  if  it  do  not  have  end  lines  sub- 
stantially parallel.  But  the  case  of  Doe  v.  Sanger,  23 
Pac.  365,  decides  in  terms  that  the  end  lines  need 
not  be  parallel  and  that  they  do  not  affect  the  right 
to  follow  the  lode  on  the  dip  for  the  weakest  of  all 
reasons  in  statutory  construction,  to  wit:  because 
the  requirement  of  parellelism  and  the  grant  of  the 
dip  are  contained  in  two  different  sections  of  the 
Mining  Act. 

It  is  evident  from  the  language  used  and  the 
plats  in  Walrath  v.  Champion  Co.  Ill  U.  8.  294,  in 
the  Stone  Lode  case,  15  M.  R.  641,  and  other  decisions 
that  practically  a  lode  may  be  surveyed  in  any  shape 
which  a  locator  chooses  to  give  to  his  lines. 

That  there  is  no  requirement  that  every  claim 
be  substantially  a  parallelogram  or  must  have  two 
endlines  and  two  sidelines.  But  no  such  irregular 
survey  has  ever  been  allowed  extralateral  rights  ex- 
cept in  the  case  of  Doe  v.  ganger,  supra.  Such  a  lo- 
cation is  good  for  its  surface  ground  and  for  such 
parts  of  veins  (not  held  by  location  on  the  apex  out- 
side) as  may  be  found  within  its  vertical  planes. 
Crown  Point  Co.  v.  Buck,  97  Fed.  462. 

Converging  End  Lines. 

In  the  Carson  City  case,  73  Fed.  597,  end  lines 
which  would  ultimately  meet  like  a  wedge  were  al- 
lowed to  be  protracted.  The  patent  in  this  instance 
perfected  locations  made  prior  to  the  Act  of  1872, 
and  the  court  held  that  parallelism  of  the  end  lines 
was  not  required  under  the  Act  of  1866. 

The  Lode  Crossing  Both  Side  Lines. 

In  the  case  of  Flagstaff  Co.  v.  Target,  9  M.  R. 
607,  the  Supreme  Court  of  the  United  States  at  an 
early  date  held  where  the  lode  crossed  from  side  line 
to  side  line  at  practically  a  right  angle  to  its  survey, 
that  in  such  case  the  side  lines  became  end  lines, 
that  is  to  say:  They  passed  down  through  the  lode 
vertically  and  cut  off  all  extralateral  rights.  This 
decision  has  been  uniformly  followed  in  all  cases 


162  APEX. 

where  the  lode  has  been  found  to  leave  its  located 
or  patented  area  through  both  side  lines. — King  v^ 
Amy  Silversmith  Go.  152  U.  8.  222;  Argentine  Co.  v. 
Terrible  Co.  122  U.  8.  478;  Parrot  Co.  v.  Heinze,  64 
Pac.  326. 

The  Lode  Leaving  One  Side  Line. 

After  much  greater  contention  than  in  the  in- 
stance of  the  lode  crossing  from  side  line  to  side 
line,  it  has  now  been  repeatedly  held  that  where  the 
lode  leaves  the  claim  through  one  end  line  and  one 
side  line  it  preserves  its  extralateral  rights,  to  wit: 
the  right  to  follow  the  vein  on  its  dip  from  the  end 
line  to  the  point  on  the  side  line  where  it  also  leaves 
the  claim.  Such  end  line  is  protracted  vertically 
downward  and  produced  on  its  course  to  form  a 
bounding  plane  and  the  other  bounding  plane  is 
found  by  protracting  and  producing  another  line 
parallel  to  the  end  line  plane  across  the  claim  at  the 
point  where  the  vein  goes  out.  Last  Chance — Tyler 
case,  54  Fed.  284;  61  Fed,.  557 ;  Cons.  Wyoming  Co.  v. 
Champion  Co.  63  Fed.  540;  Del  Monte  and  Last 
Chance  case,  66  Fed.  212;  171  U.  S.  56;  Clark  v.  Fitz- 
gerald, 171  U.  S.  92;  Carson  Vity  Co.  v.  North  Star 
Co.  73  Fed.  597. 

Divergence  from  Same  Side  Line  Twice. 

In  Catron  v.  Old,  48  Pac.  687,  18  M.  R.—,  the  Pul- 
ton survey  had  an  angle  in  the  center  making  it  a 
V  shaped  claim;  crossing  the  diverging  halves  the 
lode  left  the  location  twice  through  the  south  side 
line,  the  diagram  of  the  conflict  being  as  follows: 


APEX.  163 

The  Supreme  Court  of  Colorado  held  that  the 
Fulton  Lode  had  no  right  to  follow  the  vein  upon 
the  dip  into  any  ground  beyond  its  side  line  carried 
down  vertically,  and  the  correctness  of  such  ruling 
could  not  be  seriously  disputed  under  the  authority 
of  the  Amy -Silver  smith  Case. 
Discovery  on  the  Dip. 

In  Van  Zandt  v.  Argentine  Co.  4  M.  R.  441,  it  was 
held  that  a  prior  discovery  on  the  dip  would  hold 
against  a  junior  discovery  on  the  apex  above.  It  is 
also  obvious  that  all  tunnel  discoveries  must  neces- 
sarily be  made  on  the  dip  and  their  validity  has  never 
been  doubted.  Jones  v.  Prospect  Co.  31  Pac.  642. 
Where  the  width  of  the  claim  is  sufficient  to  allow 
the  apex  to  be  within  the  side  lines  all  doubt  on  the 
point  ceases,  but  where  the  vein  discovered  on  the 
dip  apexes  in  foreign  ground  it  is  argued  that  it 
never  becomes  the  property  of  the  locator;  that 
though  he  may  rightfully  plant  his  discovery  shaft 
on  the  dip  he  must  so  locate  as  to  cover  the  apex 
above  the  point  of  discovery  with  his  survey. — Lind- 
ley  on  Mines,  §  364. 

The  case  is  stronger  for  such  a  discovery  after 
patent,  for  there  then  arises  a  presumption  that  the 
patent  was  based  on  a  valid  discovery.  If  there  be  a 
valid  discovery  the  patent  should  certainly  convey 
the  vein  upon  which  such  discovery  was  made;  and 
the  equity  of  the  case  in  favor  of  such  an  instance, 
whether  location  or  patent,  is  to  urge  strongly 
against  such  close  construction  as  would  deprive  the 
discoverer  of  his  asserted  rights. 

In  Colo.  Cent.  Co.  v.  Turck,  50  Fed.  888;  54  Fed. 
262,  a  junior  patent  was  allowed  to  take  the  vein  on 
the  dip  underlying  a  patent  whose  discovery  shaft 
was  on  the  same  vein,  but  the  vein  of  which  was  as- 
sumed to  leave  the  side  lines,  though  it  dipped  back 
and  remained  between  them  carried  vertically  down- 
ward. 


164  APEX. 

The  Common  Law  Grant  of  the  Patent.     Veins 

Cut  Within  the  Lines,  Apexing  Outside. 

The  literal  grant  of  a  patent  issued  under  the 
Mining  Acts  reads  as  if  it  conveyed  all  veins  apex- 
ing  within  the  lines  and  excluded  all  those  whose 
apexes  are  outside.  And  such  is  its  clear  meaning 
where  a  prior  location  has  covered  the  apex  of  such 
veins  found  to  dip  underneath  a  junior  claim.  But 
where  in  sinking,  veins  or  deposits  are  found  which 
have  either  no  apex,  or  an  apex  not  located  upon  out- 
side, or  an  apex  not  located  upon  at  the  date  of  the 
patent  under  which  such  veins  or  deposits  are  found, 
to  whom  do  such  veins  or  deposits  belong? 

The  decisions  have  with  great  uniformity  held 
that  such  new  discoveries  presumptively  belong  to 
the  patentee  and  refuse  to  give  a  literal  construction 
to  the  patent.  The  case  is  fully  stated  and  the  point 
ruled  in  Doe  v.  Waterloo  Go.  54  Fed.  935,  following 
Duggan  v.  Davey,  26  N.  W.  887;  Leadville  Co.  v.  Fitz- 
gerald, 4  M.  R.  385. 

In  Montana  Co.  v.  Clark  the  ruling  was  made 
that  such  veins  apexing  outside,  but  not  located  out- 
side, remained  still  the  property  of  the  United 
States.— 16  M.  R.  80. 

This  ruling  is  theoretically  correct  and  such  vein 
or  part  of  a  vein  would  become  the  estate  of  any 
locator  who  made  a  proper  location  upon  such  apex 
outside.  But  it  often  happens  that  all  the  surface 
ground  has  been  taken  up  in  such  form  that  while 
the  apex  is  covered  it  is  covered  in  such  shape  as 
to  allow  no  extralateral  rights  and  where  such  is 
the  case  the  portions  of  the  vein  in  such  position 
belong  to  the  party  whose  survey  includes  them 
within  the  vertical  planes  of  his  side  and  end  lines. — 
Parrot  Co.  v.  Heinze,  64  Pac.  326;  State  v.  District 
Court,  65  Pac.  1020. 


APEX.  165 

Exception  of  Such  Veins  in  Favor  of  Proprietor 
of  Other  Lodes. 

In  Pacific  Coast  Co.  v.  Spargo,  16  M.  R.  75, 
and  Amador  Co.  v.  South  Spring  Co.  36  Fed.  668, 
it  was  held  that  the  exception  of  veins  apexing  out- 
side, in  favor  of  the  proprietors  of  such  veins,  should 
be  confined  to  instances  where  the  rights  of  such 
proprietors  were  in  existence  at  the  time  of  the 
grant  to  the  patentee  whose  claim  was  underlaid  by 
such  veins.  But  the  tendency  of  all  the  recent  de- 
cisions does  not  recognize  this  distinction,  but  treats 
the  exception  as  one  standing  for  the  benefit  of  fu- 
ture as  well  as  present  proprietors. — Turck  case, 
supra;  Cheesman  v.  Hart,  16  M.  R.  263. 

An  Owner  May  Amend  His  Survey,  even  after 

patent  applied  for,  to  keep  his  vein  within 
his  shortened  claim,  by  making  a  new  end  line  and 
dropping  that  portion  into  which  no  vein  extends. — 
Last  Chance  Co.  v.  Tyler  Co.  61  Fed.  557.  And  may 
amend  to  correct  diverging  end  lines. — Doe  v.  San- 
ger,  23  Pac.  365.  In  both  these  instances  the  amend- 
ments were  allowed  after  other  claims  had  been  lo- 
cated based  on  the  supposed  effect  of  the  original  er- 
ror upon  the  rights  of  parties  to  adjoining  ground. 
But  the  right  so  to  amend  and  thereby  affect  rights 
intermediately  vested  in  third  parties  is  extremely 
questionable. 

Apex  Covered  by  Several  Patents. 

Where  there  are  several  contiguous  patents  the 
dip-right  of  each  must  be  treated  as  a  separate  grant. 
The  two  patents  cannot  be  considered  together  so 
as  to  treat  them  as  if  they  were  one  patent  enclos- 
ing the  apex  of  the  vein. — Del  Monte  Co.  v.  New  York 
Co.  66  Fed.  212.  On  the  other  hand  in  Carson  City  Co. 
v.  North  Star  Co.  73  Fed.  598,  where  the  owner  of 
several  irregular  locations  had  patented  them  to- 
gether they  were  treated  as  one  claim,  enlarging  to 
extreme  limits  the  doctrine  of  Smelting  Co.  v.  Kemp, 
11  M.  R.  673,  where  the  distinction  is  made  between 
a  location  and  a  claim. 


166 


APEX. 


There  Can  Be  But  One  Set  of  End  Lines,  for  all 
the  veins  covered  by  the  patent.  And  where 
departure  from  one  or  both  side  lines  renders  it 
material,  only  the  discovery  vein  can  be  used  to 
determine  what  are  the  planes  of  the  end  lines. — 
Walrath  v.  Champion  Co.  Ill  U.  8.  293;  Cosmopoli- 
tan Co.  v.  Foote,  101  Fed.  518;  St.  Louis  Co.  v.  Mon- 
tana Co.  104  Fed.  664. 

Relation  of  End  Line  to  Strike. 

The  extralateral  rights  being  defined  by  extend- 
ing the  end  lines  as  parallel  vertical  planes,  it  is 
apparent  that  unless  the  end  lines  are  at  an  exact 
right  angle  to  the  vein,  which  they  rarely  are,  the 
grant  of  the  patent  is  not  the  grant  of  the  right  to 
follow  down  on  the  dip,  underneath  the  same  feet  of 
apex  enclosed.  On  the  contrary  there  must  be  a 
gain  in  one  direction  and  a  corresponding  loss  in  the 
other.  The  following  diagram  will  illustrate  this. 


The  Senior  and  Junior  lodes  above  are  on  the 
same  vein,  the  Senior  located  obliquely  to  the  apex. 
The  Junior  is  correctly  laid  on  the  strike  of  the  vein. 
The  Senior  is  the  older  patent.  By  the  dashed  lines 
—  —  —  the  Senior  loses  the  bottom  of  its  own 


APEX.  167 

shaft  and  cuts  off  the  shaft  of  the  Junior  lode.    The 

dotted  lines   and  the  shafts,  of  course,  are  at 

right  angles  to  the  strike  of  the  vein. 

Right  to  the  Vein    Within    the    Four    Vertical 

Planes. 

Although  where  the  lode  crosses  from  side  line 
to  side  line  it  loses  its  extralateral  rights,  the  claim- 
ant has  a  certain  compensation  by  being  allowed  to 
follow  on  the  dip  to  his  end  line. 

Where  a  dipping  lode  crosses  from  side  line  to 
side  line,  in  following  it  down,  it  is  obvious  that  two 
shafts  sunk  on  the  vein  at  the  two  points  where  it 
leaves  the  side  lines  will  inclose  between  them  all 
that  part  of  the  vein  the  apex  of  which  is  within  the 
patent— Lode  Y,  Plat  X,  p.  169. 

The  right  to  the  part  of  the  lode  between  such 
two  shafts  in  going  down  is  lost  as  soon  as  the  ver- 
tical plane  of  the  south  side  line  is  reached.  This  is 
the  ground  marked  B  on  Plat  X.  The  vein  below  on 
B  he  does  not  own.  On  the  other  hand,  he  retains 
all  of  C,  which  is  the  vein  within  the  vertical  planes 
of  his  side  and  end  lines. 

A  patentee  following  down  on  the  dip  cannot 
take  the  vein  where  he  finds  it  between  vertical  side 
and  end  lines  of  a  prior  location  whose  vein  crosses 
both  its  side  lines.  Tyler  Co.  v.  Last  Chance  Co.  71 
Fed.  848;  157  U.  8.  684;  Argentine  Co.  v.  Terrible  Co. 
122  U.  8.  478.  i 

Following  Lode  Beyond  End  Line. 

In  the  Flagstaff  Case,  the  Federal  Supreme  Court 
use  this  language:  "The  side  lines  of  the  location 
are  really  the  end  lines  of  the  claim."  In  Last  Chance 
Co.  v.  Tyler,  157  U.  8.  687,  it  says  "the  side  lines  of 
that  location  become  the  end  lines  and  the  end  the 
side  lines."  The  use  of  this  expression  is  far  from 
holding  that  extralateral  rights  may  be  pursued  be- 
yond the  end  line.  In  neither  of  these  cases  was  the 
'ground  actually  in  controversy  beyond  the  end  lines 
of  any  of  the  claims  in  dispute,  so  that  the  expres- 
sions quoted  are  only  dicta  in  both  instances. 


168  APEX. 

The. grant  of  a  patent  is  of  a  piece  of  land  with 
an  extralateral  grant  upon  a  certain  condition,  to 
wit:  that  its  lines  enclose  the  apex  of  a  vein,  which 
vein  extends  "outside  the  vertical  side  lines"  of  its 
survey.  If  its  lines  enclose  such  apex  from  end  line 
to  end  line  or  from  end  line  to  side  line,  the  condition 
exists  and  its  extralateral  right  is  established. 

In  the  proposition  that  where  it  has  a  vein  going 
through  both  side  lines  it  can  follow  such  vein  be- 
yond its  end  line  there  is  no  assertion  of  a  condition 
which,  having  been  fulfilled,  some  right  accrues  as 
the  incident  to  the  compliance  with  the  condition. 

The  statute  expressly  gives  the  right  to  go  be- 
yond the  side  line  upon  the  existence  of  the  condi- 
tion; it  does  not  give  such  right  to  go  beyond  an 
end  line.  Nor  is  there  any  known  principle  of  law 
which  would  enlarge  a  grant  in  derogation  of  the 
common  law,  and  therefore  to  be  strictly  construed 
— by  allowing  the  grantee  who  fails  to  come  within 
the  terms  of  the  conditions  of  his  grant  to  be  com- 
pensated out  of  other  lands  upon  the  supposition  of 
an  implied  condition  to  that  effect. 

And  yet  the  contrary  is  strongly  contended  for 
(Lindley,  §  589),  and  in  the  only  suit  where  the 
point  has  directly  arisen,  a  case  arising  on  an  ore 
contract  made  in  Arizona  and  sued  on  in  Connecti- 
cut, the  holding  was  made  that  the  vein  could  be 
pursued  beyond  its  end  line. — Empire  Go.  v.  Tomb- 
stone Co.  100  Fed.  910. 

Also,  in  Bunker  Hill  Co.  v.  Empire  Co.  109  Fed. 
538,  the  point  was  conceded  to  the  same  effect,  but 
in  that  case  all  the  claims  involved  were  surveyed 
squarely  across  the  strike,  so  that  neither  had  any 
status  as  to  the  ore  in  contention  unless  it  was  so  con- 
ceded. 

Recapitulation — Explanation  of  Plat  X. 

The  plat  on  page  169  will  illustrate  several  of 
the  instances  above  mentioned.  It  represents  a  vein 
covered  by  a  location  from  end  line  to  end  line,  by 
another  location  where  the  vein  crosses  from  side 


APEX. 


169 


170  APEX. 

line  to  side  line,  and  a  third  location  where  the  vein 
crosses  one  end  line  and  one  side  line.  The  dip  of 
the  vein  is  to  the  south,  that  is,  to  the  foot  of  the 
plat 

The  X  location  owns,  of  course,  its  entire  sur- 
vey and  may  follow  the  vein  on  its  dip  between 
its  vertical  end  lines  extended  downward  indefi- 
nitely. 

Y  owns  the  vein  in  the  triangle  A.  He  does 
not  own  B.  On  the  other  hand,  he  does  own  C; 
being  that  part  of  the  vein  between  his  vertical  side 
and  end  lines,  unless  X  is  the  older  location,  in  which 
case  he  loses  to  X  the  greater  part  of  C. 

As  to  whether  Y  has  any  estate  in  D,  being  the 
extension  of  his  vein  beyond  his  end  line,  is  the  ques- 
tion discussed  on  page  168. 

Z,  whose  vein  leaves  one  end  line  and  one  side 
line,  is  the  owner  of  the  parcel  E,  and  the  parcel  F, 
the  vein  on  the  dip,  to  the  extent  of  his  extralateral 
rights.  He  cannot  follow  into  G.  The  vein  in  G 
becomes  the  property  of  whoever  may  disclose  and 
locate  the  apex  in  the  vacant  ground  between  Y 
and  Z. 

Presumption — Burden  of  Proof. 

The  presumption,  where  a  miner  is  found  be- 
yond his  side  lines,  is  against  him.  He  is  prima 
facie  a  trespasser  till  he  has  shown  that  he  gets 
there  by  following  the  lode  on  its  dip  from  its  apex 
within  his  lines. — Cheesman  v.  Shreeve,  16  M.  R.  79; 
Blue  Bird  Go.  v.  Murray,  23  Pao.  1022;  Bell  v.  Skilli- 
corn,  28  Pac.  768;  Cons.  Wyoming  Co.  v.  Champion 
Co.  63  Fed.  540;  Iron  8.  Co.  v.  Campbell,  17  Colo.  267; 
Dugan  v.  Davey,  4  Dak.  110;  Leadville  Co.  v.  Fitz- 
gerald, 4  M.  R.  380;  Doe  v.  Waterloo^  Co.  54  Fed.  935; 
Maloney  v.  King,  64  Pao.  351. 

But  the  fact  that  the  owner  is  claiming  extra- 
lateral  rights  does  not  prevent  the  application  of  the 
presumption  that  his  surface  bounds  include  his  vein 
in  such  a  manner  as  to  entitle  him  to  extralateral 


DIP.  171 

rights. — Wakeman  v.  Norton,  24  Colo.  192.  But  the 
proof  of  the  continuity  of  the  vein  downward  must 
be  made. — Butte  Co,  v.  Societe,  58  Pac.  111. 


DIP. 


Dip  is  a  proper  mining  term  and  has  a  plain  and 
important  signification.  It  means  the  line  of  depar- 
ture of  a  lode  from  the  perpendicular.  The  number 
of  degrees  may  of  course  be  calculated  from  either 
the  perpendicular  or  from  the  horizontal,  and  the 
usage  with  professional  surveyors  is  to  calculate  the 
degrees  from  the  horizontal,  but  miners  generally 
speak  of  a  lode  as  dipping  so  many  degrees  from  the 
perpendicular,  especially  when  referring  to  lodes 
worked  by  shafts.  It  is  used  along  with  "angles 
and  variations,"  in  the  A.  C.  1866,  and  is  with  those 
words  omitted  in  the  A.  C.  1872,  but  its  place  is 
supplied  by  the  phrase  (§  2322): 

"All  veins,     *     *     *     throughout  their    entire    depth, 
*     *     although    such    veins,   *   *   *.  may    so    far    depart 
from    a   perpendicular   in   their  course   downward   as   to   ex- 
tend   outside    the   vertical    side-lines,    of    such   surface    loca- 
tions." 

The  term  is  to  so  great  an  extent  associated  with 
the  terms  APEX  and  DRAINAGE  that  it  has  been  neces- 
sarily to  a  large  extent  considered  under  those  heads. 

Practical  Effect  of  Dip  to  Carry  the  Lode  Away 

from  Its  Surface  Lines. 

A  lode  dipping  to  the  north  will  gain  horizon- 
tally to  the  north  about  1.7  feet  in  100  feet  of  descent 
for  each  degree  from  the  vertical. 

A  shaft  sunk  upon  a  dipping  vein  will,  in  100 
feet  depth,  measured  along  the  dip,  acquire  the  fol- 
lowing vertical  depths  and  horizontal  departures 
from  the  top  of  the  shaft  for  the  following  angles,  all 
taken  from  the  horizontal. 


172  DIP. 

ANGLE  VERTICAL  HORIZONTAL 

DEPTH  DEPARTURE 

10°  17.4  feet  98.5  feet 

20°  34.2  "  94.0  " 

30°  50.0  "  86.6  " 

40°  64.3  "  76.6  " 

50°  76.6  "  64.3  " 

60°  86.6  "  50.0  " 

70°  94.0  "  34.2  " 

80°  98.5  "  17.4  " 

90°  100.0  "  0.0  " 

Cubic  Incidents  of  Lode  Claims. 

From  the  outstart  it  should  be  kept  in  view  that 
a  lode  claim  is  a  solid  body  of  ground  and  not  a 
"superficies." — Massot  v.  Moses,  8  M.  R.  608.  Dip 
is  only  one  of  the  incidents  of  this  fact.  A  placer  or 
even  a  coal  bed  furnishes  few  analogies  to  define  the 
rights  of  a  claim  which  leaves  the  surface  at  once 
and  follows  its  own  course,  governed  only  by  its 
natural  but  invisible  boundaries. 

Estate  in  the  Dipping  Lode. 

Since  the  dip  may  carry  a  lode  under  the  side 
lines  of  an  adjoining  claim,  the  right  to  follow  such 
a  lode  must  indicate  either:  First — An  easement  to 
which  the  adjoining  claim  is  subject,  or,  rather,  Sec- 
ond— An  exception  out  of  the  estate  of  the  adjoining 
claim.  The  maxim  that  ownership  extends  from  the 
surface  to  the  center  of  the  earth  in  vertical  lines, 
in  either  event,  therefore,  does  not  apply;  the  claim 
in  its  downward  course  is  governed  by  the  dip  of  the 
vein  whose  apices  appear  at  the  surface;  it  extends 
under  the  vertical  side  lines  of  the  adjoining  claims 
on  one  side,  and  on  the  other  side  it  leaves  veins 
pitching  under  its  own  side  lines  as  the  property  of 
him  who  is  their  owner  at  the  surface. — Iron  Silver 
Co.  v.  Cheesman,  116  U.  8.  530. 

Where  a  lode  cut  in  a  tunnel  has  a  dip  it  will 
be  assumed  that  it  carries  the  same  dip  to  the  sur- 
face.— Brewster  v.  Shoemaker,  63  Pac.  309. 


DIP.  173 

The  Side  or  Auxiliary  Veins,  whose  apices  may 
be  within  the  side  lines  of  the  claim  or  pat- 
ent have  the  same  right  to  the  dip  as  has 
the  principal  or  discovery  vein. — Jupiter  Co.  v.  Bodie 
Co.  4  M.  R.  412;  Walrath  v.  Champion  Co.  63  Fed.  552. 

No  Apex — No  Dip. 

Any  located  or  patented  claim  which  has  been  so 
surveyed  that  its  vein  runs  practically  at  right  angles 
to  the  side  lines  cannot  claim  the  dip  beyond  its  side 
lines.— The  Flagstaff  case,  9  M.  R.  607;  McCormiclc 
v.  Varnes,  Id.  506;  Argentine  Co.  v.  Terrible  Co.  122 
U.  8.  478,  and  cases  cited  under  APEX. 

Effect  of  End  Lines. 

The  end  lines  of  all  lode  claims  are  required  to 
be  parallel;  and  where  the  lode  in  its  descent  reaches 
the  end  lines  protracted,  the  claim  ceases  and  the 
dip  cannot  be  followed  across  the  protraction  of 
the  end  lines. — Richmond  Co.  v.  Eureka  Co.  9  M.  R. 
634;  Stone  Lode  case,  15  M.  R.  641.  To  allow  the  end 
lines  to  diverge  is  to  allow  the  claimant  an  ever 
increasing  lineal  extent  of  vein  as  he  descends. 
Page  160. 

When  the  Grantor  Conveys  a  claim  or  part  of  a 
claim  he  conveys  the  right  to  follow  on  the  dip  all 
veins  apexing  within  the  granted  ground. — Stinch- 
fteld  v.  Gillis,  30  Pac.  840;  40  Pac.  98;  Boston  Co. 
v.  Montana  Co.  89  Fed.  529.  This  would  seem  self- 
evident  in  a  conveyance  of  the  entire  claim  or  of 
a  claim  divided  across  from  side  line  to  side  line. 
But  in  every  mining  deed  the  dip  right  should  be 
mentioned  in  express  terms. 


174  WALLS. 


WALLS. 


Defined. 

In  a  contact  vein  the  roof  or  hanging  wall  is  the 
plane  of  the  contact  above;  the  floor  or  foot  wall  is 
the-  plane  of  the  contact  below.  In  fissure  veins 
the  walls  are  the  plane  of  demarcation  between  the 
country  and  the  gangue. 

Relation  to  the  Country. 

It  should  seem  almost  self-evident  that  the  na- 
ture of  the  wall  must  depend  upon  the  nature  of 
the  country  rock  and  the  nature  of  the  material 
which  it  encloses.  Between  certain  rocks  the  plane 
of  separation  would  be  distinct  and  traceable;  be- 
tween other  rocks  a  diffusion  of  the  oxides  and  min- 
erals of  the  enclosed  material  through  the  adjoining 
country,  would  obliterate  more  or  less  all  trace  of 
the  original  plane  of  division.  Where  this  plane 
of  division  is  manifest  to  the  eye  there  is  what 
miners  call  a  wall — where  it  has  become  obliterated 
they  say  there  is  no  wall.  It  is  therefore  manifest 
that  the  fact  of  the  absence  of  one  or  both  walls,  is, 
in  itself  alone,  no  proof  of  the  non-existence  of  a 
vein,  they  being  a  mere  accidental  circumstance. 
And  it  has  been  so  decided  in  the  Lime  Lode  case, 
116  U.  8.  530,  and  in  the  Durant  case,  15  M.  R.  519. 
In  the  former  decision,  after  defining  what  consti- 
tutes a  lode  as  "a  body  of  mineral  or  mineral-bearing 
rock  within  defined  boundaries,"  MILLER,  J.  adds: 
"In  the  existence  of  such  body  and  to  the  extent  of 
it,  boundaries  are  implied."  In  the  latter  case,  in 
such  language  as  would  be  used  by  a  lawyer  thor- 
oughly familiar  with  the  subject  matter,  HALLETT  J. 
says:  "It  is  true  that  a  lode  must  have  boundaries, 
but  there  seems  to  be  no  reason  for  saying  that  they 
must  be  such  as  can  be  seen." 


SPURS.  175 

Broken  Ground — Slips — Natural  Cleavage. 

It  is  also  evident  that  subsequent  'disturbance 
of  the  vein  matter  would  tend  to  destroy  the  con- 
tinuity of  the  wall;  and  in  many  classes  of  rock  the 
natural  cleavage  is  such  as  often  to  be  mistaken  for 
and  followed  as  a  wall.  In  such  ground  a  very  little 
manipulation  may  be  made  to  show  an  apparent 
wall  where  none,  in  fact,  exists. 

Disappearance  of  Wall. 

It  is  nevertheless  true  that  where  a  wall  has 
shown  itself  for  some  distance  and  disappears — that 
is  an  important  item  to  be  considered  where  the  fur- 
ther continuity  of  the  vein  is  made  doubtful  by 
reason  of  the  simultaneous  disappearance  of  the  min- 
eral and  an  apparent  change  in  the  rock  which  is 
being  followed.  See  page  1$. 

Wall  or  Side  of  Working. 

It  is  also  to  be  observed  that  the  term  "wall" 
is  often  used  with  reference  to  the  actual  side  of 
a  drift,  shaft  or  other  working  without  reference 
to  ita  association  with  the  vein,  and  finding  mineral 
by  "cutting  through  the  wall"  is  spoken  of  as  if  it 
implied  no  contradiction  of  terms. 


SPURS. 


The  word  spurs  is  not  found  in  any  of  the  Acts 
of  Congress  nor  in  the  patents  issued  under  them. 
It  is  a  dangerous  term,  because  its  meaning  is  rela- 
tive, not  definite.  That  which,  when  first  discovered, 
may  be  called  a  spur,  may  prove  to  be  a  better  de- 
veloped vein  than  the  lode  from  which  it  strikes  off. 

But  the  term  found  its  way  into  the  Colorado 
Territorial  Act  of  1866,  and  is  seen  in  most  records; 
when  properly  applied  it  signifies  a  feeder  to,  or  off- 
shoot from,  a  lode.  As  such  it  is  part  and  parcel  of 
the  lode,  at  least  as  far  as  the  side  lines  of  the  claim, 


176  ANGLES  AND  VARIATIONS. 


and  if  it  extended  much  further,  it  could  hardly  be 
called  a  spur. 

A  spur  is  defined  (Bainbridge,  p.  2,  note,)  as  "A 
lateral  branch  from  the  main  lead,  not  returning  to 
it,  but  losing  itself  in  the  surrounding  soil." 

Though  called  a  spur  (which  word  is  apt  to  be 
used  as  a  slurring  term)  it  is  in  law  a  lode  upon 
which  a  valid  title  may  be  founded  if  it  do  in  fact 
show  such  "well-defined  crevice." 

Where  repeated  locations  have  been  made  upon 
a  mineral  vein  it  is  too  late  to  call  it  a  spur,  espe- 
cially where  the  law  fixes  no  limit  to  the  size  of  the 
vein  which  may  be  located,  nor  admits  comparison 
of  different  size  between  conflicting  locations. — Car- 
son City  Co.  v.  North  Star  Co.  73  Fed.  601. 

When  the  discovery  or  existence  of  a  lode  is  in 
contention,  its  size,  strength,  continuity  and  other 
like  incidents  are  questions  of  fact  to  be  found  by 
the  jury. — Blue  Bird  Co.  v.  Largey,  49  Fed.  289;  Book 
v.  Justice  Co.  58  Fed.  106. 

Ore  bodies  formed  off  from  the  fissure  do  not 
form  separate  veins. — Tombstone  M.  Co.  v.  Way  Up 
Co.  1  Ariz.  426. 


ANGLES  AND  VARIATIONS. 


Use  in  Statutes  and  Conveyancing. 

In  §  4,  A.  C.  1866,  the  words  "angles  and  varia- 
tions" were  used,  and  under  that  Act  a  lode  was  pat- 
ented with  its  "angles  and  variations."  They  are 
neither  law  terms  nor  technical  mining  expressions, 
but  are  supposed  to  cover  the  digressions  of  a  lode 
from  a  straight  line,  and  might  be  extended  to 
"faults."  In  arguing  the  important  question  arising 
upon  patents  under  the  old  law  when  the  vein  left 
the  side  lines,  these  words  were  strongly  urged  as 


ANGLES  AND  VARIATIONS.  177 

indicating  the  intention  to  pass  the  vein  as  the  essen- 
tial grant  of  the  patent.  These  words,  or  like  terms, 
are  in  common  use  in  the  phraseology  of  mining 
deeds  (Bullion  Co.  v.  Crcesus  Co.  5  M.  R.  257)  but  are 
not  words  of  essential  description. 

Irregular  Surveys  With  Unnecessary  Angles. 

A  lode  may  and  should  be  surveyed  to  cover  all 
its  angles.  But  acute  angles  such  as  were  attempted 
in  the  Stone  Lode,  leading  to  fantastic  figures, 
widely  different  from  the  parallelogram  intended  in 
the  Act  of  Congress,  even  if  they  have  two  parallel 
courses  which  they  call  end  lines,  run  a  risk  of  being 
ruled  out  of  any  right  to  claim  beyond  their  side 
lines.  In  other  respects  they  may  be  wholly  valid  if 
the  end  lines  are  regular  and  the  statutory  width 
and  length  are  not  exceeded. — Iron  Silver  Co.  v.  El- 
gin Co.  15  M.  R.  641;  118  U.  S.  200,. 

Whether  the  presumption  allowed  in  ordinary 
cases  (Armstrong  v.  Loiuer,  6  Colo.  582)  that  the  sur- 
vey covers  the  vein  would  be  indulged  to  a  claim 
which  has  acute  angles  may  be  doubted.  Such  pre- 
sumption is  merely  to  fix  the  party  on  whom  is  the 
burden  of  proof,  and  on  an  angled  claim  ought  to 
yield  to  very  slight  evidence. 

Angles  to  Allow  for  Slope. 

But  where  the  lode  has  a  pitch  and  is  located 
on  rising  ground,  especially  where  it  crosses  the 
saddle  of  a  mountain  or  passes  through  a  deep  gulch, 
an  angle  or  angles  ought  sometimes  to  be  made,  the 
direction  of  which  will  depend  upon  the  dip  of  the 
lode,  whether  into  or  out  of  the  mountain,  and  the 
extent  of  which  will  depend  upon  the  degree  of  the 
dip.  Such  allowances  are  not  called  for  where  the 
location  is  on  level  ground  nor  even  on  rising  ground 
if  the  lode  runs  directly  up  and  down  hill;  but  are 
essential  under  conditions  familiar  to  surveyors  and 
to  experienced  prospectors,  in  order  to  keep  the  apex 
fairly  between  the  side  lines.  See  page  172. 


178  DRAINAGE. 


DRAINAGE. 


Legislative  Control. 

Sec.  3. — The  general  assembly  may  make  such  regu- 
lations, from  time  to  time,  as  may  be  necessary  for  the 
proper  equitable  drainage  of  mines. — Colo.  Const.  Art.  XVI. 

Under  the  above  authorization  M.  A.  S.  §§  3172- 
3180,  attempt  to  regulate  this  subject.  Such  State 
control  is  also  recognized  in  section  2338  of  the  U.  S. 
Statutes. 

But  the  subject  itself  is  one  of  inherent  difficulty. 
The  Act  seeks  to  provide  that  where  one  mine  drains 
another,  the  mine  thus  benefited  shall  pay  its  propor- 
tion of  the  cost  of  drainage.  Where  a  tunnel  or  lower 
adit  drains  another  mine,  it  is  doubtful  whether  such 
Acts  have  any  application,  as  such  drainage  is  only 
incidental. — Baird  v.  Williamson,  4  M.  R.  368;  Town- 
send  v.  Peasley,  2  M.  R.  612.  But  where  one  mine 
hoists  the  water  of  another  a  natural  equity  is  more 
apparent,  and  statutes  in  aid  of  contribution,  even 
giving  a  royalty  to  the  draining  mine,  have  been  en- 
forced.— Ahren  v.  Dubuque  Go.  5  M.  R.  144. 

Coal  Mines. 

Where  in  case  of  veins  or  deposits  of  the  class 
represented  by  coal  beds,  one  mine  lies  under  the  dip 
of  another  mine  at  a  higher  level,  it  is  under  servi- 
tude to  the  water  flow  of  the  mine  above. — Philadel- 
phia Co.  v.  Taylor,  5  M.  R.  133. 

Servitude  of  the  Lower. 

In  lode  mines  the  same  rule  applies — that  the 
lower  workings  must  stand  the  water  from  the  higher 
pits,  subject  to  such  regulations  as  the  Drainage  Act 
supplies,  where  such  an  Act  exists  and  its  provisions 
can  be  enforced;  and  the  upper  mine  cannot  wan- 
tonly cast  its  water  on  the  lower. — Locust  Co.  v.  Gor- 
rell,  5  M.  R.  129.  The  same  rule  applies  to  quarries. — 
Ulmer  v.  Farnsworth,  15  Atl.  65. 


DITCHES  AND  WATER.  179 


DITCHES  AND  WATEK. 


Congressional  Recognition  of  Easements. 

R.  S.  Sec.  2339. — Whenever,  by  priority  of  possession, 
rights  to  the  use  of  water  for  mining,  agricultural,  manu- 
facturing, or  other  purposes,  have  vested  and  accrued,  and 
the  same  are  recognized  and  acknowledged  by  the  local 
customs,  laws,  and  the  decisions  of  courts,  the  possessors 
and  owners  of  such  vested  rights  shall  be  maintained  and 
protected  in  the  same  ;  and  the  right  of  way  for  the  con- 
struction of  ditches  and  canals  for  the  purposes  herein 
specified  is  acknowledged  and  confirmed  ;  but  whenever  any 
person,  in  the  construction  of  any  ditch  or  canal,  injures 
'or  damages  the  possession  of  any  settler  on  the  public  do- 
main, the  party  committing  such  injury  or  damage  shall 
be  liable  to  the  party  injured  for  such  injury  or  damage. — • 
Sec.  9,  A.  C.  July  26,  1866. 

Excepted  in  Patent. 

R.  S.  Sec.  2340. — All  patents  granted,  or  pre-emption 
or  homesteads  allowed,  shall  be  subject  to  any  vested  and 
accrued  water-rights,  or  rights  to  ditches  and  reservoirs 
used  in  connection  with  such  water-rights  as  may  have  been 
acquired  under  or  recognized  by  the  preceding  section. — 
Sec.  17,  A.  C.  July  9,  1870. 

Claims  Subject  to  Ditches,  Flumes  and  Trails — 
Parol  License. 

M.  A.  S.  Sec.  3158. — All  mining  claims  now  located  or 
which  may  be  hereafter  located,  shall  be  subject  to  the 
right  of  way  of  any  ditch  or  flume  for  mining  purposes,  or 
of  any  tramway  or  pack  trail,  whether  now  in  use  or  which 
may  be  hereafter  laid  out  across  any  such  location  ;  Pro- 
vided, always,  That  such  right  of  way  shall  not  be  exercised 
against  any  location  duly  made  and  recorded,  and  not  aban- 
doned prior  to  the  establishment  of  the  ditch,  flume,  tram- 
way or  pack  trail,  without  consent  of  the  owner,  except  by 
condemnation,  as  in  case  of  land  taken  for  public  highways. 
Parol  consent  to  the  location  of  any  such  easement  ac- 
companied by  the  completion  of  the  same  over  the  claim 
shall  be  sufficient  without  writings  ;  And  Provided  further, 
That  such  ditch  or  flume  shall  be  so  constructed  that  the 
water  from  such  ditch  or  flume  shall  not  injure  vested 
rights  by  flooding  or  otherwise. — Feb.  13,  187%. 


180  DITCHES  AND  WATER. 

Besides  the  Act  of  1866,  above  printed,  Congress 
allows  right  of  way  to  ditches,  tramways,  reservoirs 
and  power  lines  over  the  public  lands  by  Act  of  1895 
and  its  amendment. — 28  St.  L.  635;  29  Id.  120;  30  Id. 
404. 

The  Right  of  the  Miner  to  Divert  Water  from  its 
natural  stream,  in  opposition  to  the  common  law, 
has  been  not  only  granted  under  the  Act  of 
Congress  of  1866,  but  that  Act  has  been  construed 
by  several  decisions  of  the  Supreme  Court  of  the 
United  States. — Atchison  v.  Peterson,  1  M.  R.  583; 
Basey  v.  Gallagher,  Id.  683;  Jennison  v.  Kirti,  4 
M.  R.  504. 

These  decisions  further  recognize  the  right  of 
"appropriation,"  as  it  is  called,  as  a  necessity  in 
placer  mining  districts.  The  party  who  first  appro- 
priates the  water  for  mining  purposes,  obtains  the 
right  both  as  to  parties  who  attempt  to  take  it  by 
tapping  the  stream  above,  or  who  need  it  in  the 
stream  below.  A  homestead  or  other  entry  is  sub- 
ject to  the  rights  of  a  prior  appropriation  of  water. 
— South  Yuba  Co.  v.  Rosa,  22  Pac.  222;  Tynon  v.  Des- 
pain,  22  Colo.  240. 

Incidents  of  Water  Appropriation. 

A  ditch  is  an  easement  over  the  land  which  it 
crosses. — Quinlan  v.  Noble,  75  Gal.  250.  A  party  can- 
not locate  a  ditch  in  such  a  manner  as  to  prevent 
the  practical  mining  by  hydraulic  power,  or  other- 
wise, of  claims  which  it  crosses;  nor  so  as  to  cut  off 
the  water  used  by  the  hydraulic.  When  ditch  crosses 
ditch,  the  later  claimant  must  adjust  the  crossings 
so  as  not  to  interfere  with  the  full  use  of  the  prior 
ditch.— Jennison  v.  Kirk,  4  M.  R.  506. 

Appropriation  by  Placer  Location. 

It  has  been  lately  held  that  a  placer  location  is 
of  itself  an  appropriation  of  all  the  water  flowing 
across  it  to  the  extent  needed  for  working  it. — 
Schwab  v.  Beam,  86  Fed.  41.  This  is  an  extreme 
holding  on  what  seems  to  us  a  very  doubtful  posi- 
tion. 


DITCHES  AND  WATER.  181 

The  Change  of  Locality  where  the  water  is  used 

does  not  forfeit  the  right. — Maeris  v.  BicTcnell,  1  M. 
R.  601.  He  may  change  either  the  point  of  diver- 
sion or  the  place  of  use. — Strickler  v.  Colorado 
Springs,  26  Pac.  314.  If  he  has  prior  right  to  the 
water  he  may  take  it  by  a  new  and  different  ditch. — 
Jacob  v.  Lorenz,  33  Pac.  120;  Greer  v.  Heiser,  16 
Colo.  306. 

Where  a  party  has  appropriated  water  for  the 
purpose  of  working  particular  mining  claims,  after 
he  has  worked  out  the  same  he  may  extend  his  ditch 
and  work  other  claims,  or  use  the  water  for  a  dif- 
ferent purpose,  without  losing  his  priority  of  right, 
even  against  a  party  who  had  dug  a  ditch  and  appro- 
priated water  from  the  same  stream  before  the  first 
claims  were  washed  out. — Davis  v.  Gale,  4  M.  R.  604- 

But  where  water  has  been  used  and  returned  to 
the  stream  and  been  appropriated  after  its  return, 
the  upper  appropriator  cannot,  by  changing  the  line 
of  his  ditch,  destroy  the  intervening  appropriation 
below  him. — Last  Chance  Co.  v.  Bunker  Hill  Co.  49 
Fed,  430. 

Using  Gulch  or  Creek  for  Channel. 

A  party  may  use  the  bed  of  a  natural  stream  as 
his  means  of  conducting  water  added  to  it  by  a 
ditch,  without  being  considered  as  abandoning  the 
water  by  mingling  it  with  the  original  waters  of  the 
stream.— Butte  Co.  v.  Vaughn,  4  M.  R.  552;  Oppen- 
lander  v.  Left  Hand  Co.  18  Colo.  142. 

Location  of  Ditch  Eight. 

At  the  point  where  water  is  taken  from  the 
stream,  post  notice  as  follows: 

DITCH    NOTICE. 

MIDLAND  DITCH. — I  claim  50  inches  of  the  water  of 
this  stream,  to  be  taken  by  ditch  from  this  point  to  claims 
on  Wightmaris  Gulch,  in  Summit  Mining  District,  Rio 
Grande  County,  for  mining  purposes. 

January  17,  1903.  ALEXANDER  G.  COCHRAN. 

Posting  this  notice,  at  least  when  accompanied 
by  collateral  acts  showing  intention  to  follow  up, 


182  .DITCHES  AND  WATER. 

gives  a  reasonable  time  to  begin  the  ditch. — Dylte  v. 
CaUwell,  18  Pac.  276. 

LOCATION    CERTIFICATE    OF   DITCH    AND    WATER    RIGHT. 
TO    ALL    WHOM    THESE    PRESENTS    MAY    CONCERN  : KnOW 

Ye  that  I,  Alexander  G.  CocTiran,  of  St.  Louis,  in  the 
State  of  Missouri,  do  hereby  declare  and  publish  as 
a  legal  notice  to  all  the  world  that  I  have  a  valid 
right  to  the  occupation,  possession  and  enjoyment  of 
all  and  singular,  that  tract  or  parcel  of  land  lying  and 
being  in  Summit  Mining  District,  in  the  County  of  Rio 
Grande,  in  the  State  of  Colorado,  for  ditch  and  mining  pur- 
poses, bounded  and  described  as  follows,  to  wit : — The  Mid- 
land Ditch:  Head  of  ditch  tapping  the  waters  of  the  Ala- 
mosa  River  at  a  point  indicated  by  notice  there  posted  on 
the  right  bank  abont  one  mile  above  Summitville,  100  yards 
southwest  from  cabin  occupied  ~by  Jacob  Ellison,  and  110 
feet  northeast  from  tree  blazed  with  letters  "M.  D." ; 
course  of  ditch  thence,  etc.,  etc. 

I  also  claim  50  inches  of  the  waters  of  said  river,  to 
be  conveyed  by  said  ditch,  with  the  exclusive  right  of  way 
for  said  ditch  ;  together  with  all  and  singular,  the  heredi- 
taments and  appurtenances  thereunto  belonging  or  in  any 
wise  appertaining. 

Witness  my  hand  and  seal  this  17th  day  of  January, 
in  the  year  nineteen  hundred  and  three. 

ALEXANDER  G.  COCHRAN.  [SEAL.] 

STATE  OF  COLORADO,  County  of  Fremont:  ss. 

Before  me,  the  subscriber,  a  Notary  Public  in  and  for 
said  County,  personally  appeared  Alexander  G.  Cochran,  to  me 
personally  known  to  be  the  same  person  described  in,  and 
who  executed  the  within  Declaration  of  Occupation  and  ac- 
knowledged that  he  signed,  sealed  and  published  the  same 
as  his  free  and  voluntary  act  and  deed  for  the  uses  and  pur- 
poses therein  set  forth. 

Witness  my  hand  and  Notarial  Seal,  this  nth  day  of 
January,  A.  D.  1908.  Geo.  W.  Clclland, 

[SEAL.]  Notary  Public. 

The  abo\e  is  a  form  prescribed  by  statute  in 
Colorado  (M.  A.  8.  §  3610),  but  would  be  valid  any- 
where as  a  location  certificate  of  ditch  rights  unless 
the  local  statute  should  prescribe  something  more 
than  the  names,  date,  description  and  declaration  of 
intention  which  such  form  contains. 

The  ditch  should  be  staked  and  work  com- 
menced and  prosecuted  with  reasonable  diligence. 
If  the  notice  and  record  be  not  followed  up  within 


DITCHES  AND  WATER.  183 

a  reasonable  time  by  actual  work  in  carrying  out 
the  intended  appropriation,  they  amount  to  abso- 
lutely nothing. 

Unless  required  by  district  rule  or  statute  the 
existence  of  such  record  could  not  be  insisted  on  as 
a  condition  of  title,  where  the  ditch  is  actually  con- 
structed and  continuously  used.  But  such  record  is 
customary,  always  advisable,  and  when  made  be- 
comes the  initial  point  in  the  chain  of  recorded  title. 

The  staking  of  a  ditch  means  merely  the  survey 
and  marking  of  its  line  preliminary  to  excavation. 
The  stakes  are  not  a  part  of  its  location  as  they  are 
of  a  mining  claim. 

How  Conveyed. 

Right  to  water  appropriated  may  be  transferred 
like  other  property.  A  ditch  is  real  estate  and  is 
conveyed  by  deed. — Smith  v.  O'Hara,  1  M.  R.  671; 
Bradley  v.  Harkness,  11  M.  R.  389;  Burnham  v.  Free- 
man, 11  Colo.  601;  Colorado  Act,  1893,  p.  298. 

Appurtenance. 

Whether  a  deed  of  lands  conveys  the  ditches  and 
water  rights  depends  upon  the  intent  of  the  grantor, 
and  may  be  implied  where  the  use  is  necessary  to  its 
beneficial  enjoyment.— Arne££  v.  Linhart,  21  Colo. 
188;  Gelwicks  v.  Todd,  24  Colo.  494.  The  water  right 
goes  with  the  sale  of  a  mill  site. — N.  A.  Co.  v.  Adams, 
104  Fed.  404-  The  ditch  was  held  no  appurtenance 
in  Quirk  v.  Falk,  2  M.  R.  19,  and  Ginocchio  v.  Amador 
Co.  67  Cal.  493. 

A  patent  does  not  divest  ditch  rights. — Dodge  v. 
Marden,  1  M.  R.  63.  The  right  granted  under  the 
A.  C.  1866  was  not  confined  to  ditches  then  in  exist- 
ence.— Jacob  v.  Lorenz,  33  Pac.  119. 

Abandonment. 

A  ditch  may  be  abandoned  without  necessarily 
abandoning  the  water  which  it  carried. — New  Mercer 
Co.  v.  Armstrong,  21  Colo.  357.  Non-user  of  ditch 
does  not  necessarily  amount  to  abandonment. — Welch 
v.  Garrett,  51  Pac.  405. 


184  DITCHES  AND  WATER. 

Buyer  Must  Take  Notice  of. 

A  ditch  is  a  physical  and  visible  monument,  and 
doubtless  the  grantee  of  land  crossed  by  a  ditch  buys 
with  presumptive  notice  of  its  existence. — Oregon 
Go.  v.  Trullenger,  4  M.  R.  247;  Lampman  v.  Milks,  21 
N.  Y.  505. 

Relation. 

When  a  ditch  is  made  for  the  appropriation  of 
water,  the  right  relates  back  to  the  commencement 
of  the  work  on  the  ditch,  if  the  same  be  completed 
within  a  reasonable  time. — Maeris  v.  Bicknell,  1  M.  R. 
601;  Irwin  v.  Strait,  18  Nev.  436. 

But  if  the  ditch  be  not  completed  with  due  dili- 
gence, the  right  only  accrues  from  the  time  the  water 
is  actually  appropriated. — Ophir  Go.  v.  Carpenter,  4 
M.  R.  640.  Facts  stated  and  held  to  amount  to  due 
diligence. — Oviatt  v.  Big  Four  Go.  65  Pac.  811. 

Surplus  Water. 

Ditch  owner  must  return  surplus. — Stanford  v. 
Felt,  71  Gal.  249.  After  user  by  placer  miner  it  must 
be  let  go  to  claims  below. — Alder  Gulch  Go.  v.  Hayes, 
9  Pao.  581.  Waste  water  defined. — Byrne  v.  Grafts, 
73  Gal.  641. 

Water  escaping  from  a  tunnel  is  not  the  subject 
of  appropriation  such  as  to  impose  any  obligations 
on  the  tunnel  owner. — Gardelli  v.  GomstocTc  Go.  66 
Pac.  950,  and  the  same  as  to  water  from  the  sluice  of 
a  placer  claim  and  tapped  on  the  owner's  ground  by 
his  license. — Fatirplay  Go.  v.  Weston,  67  Pac.  160. 

Parol  License  to  Construct. 

Where  a  ditch  is  constructed  on  government  land 
or  over  the  land  of  persons  who  give  their  consent,  no 
condemnation  proceedings  are  necessary;  the  ditch 
once  constructed  becomes  a  lawful  easement;  or  the 
consent  may  be  treated  as  giving  title  by  estoppel. — 
Yunker  v.  Nichols,  8  M.  R.  64. 

Such  was  the  decision  made  on  general  princi- 
ples and  upon  conditions  found  equally  everywhere 
on  the  Pacific  slope.  We  apprehend  that  it  states 


DITCHES  AND  WATER.  185 

the  true  rule  applying  to  this  class  of  cases.  It  was 
doubted  in  Stewart  v.  Stevens,  10  Colo.  44$,  hut  has 
been  repeatedly  followed  since. — Oppenlander  v.  L. 
H.  Co.  18  Colo.  142;  Tynon  v.  Despain,  22  Colo.  240. 
With  or  without  the  aid  of  this  or  like  decisions  it 
remains  clear  that  a  ditch  over  the  public  land  re- 
quires the  consent  of  no  person,  the  federal  consent 
being  given  by  law,  that  verbal  consent  is  commonly 
taken  as  sufficient  over  possessory  claims  and  that 
when  by  its  construction  it  becomes  a  fixed  ease- 
ment, even  the  patented  title  recognizes  the  validity 
of  the  title  to  such  ditch. — Tynon  v.  Despain,  48 
Pac.  1039. 

Condemnation  Where  Necessary. 

Where  it  is  to  be  built  across  claims  or  other 
lands  whose  owners  refuse  consent,  condemnation 
proceedings  are  necessary  under  the  Eminent  Do- 
main Acts,  notwithstanding  the  right  of  way  granted 
to  ditches  by  the  Act  of  1866.  (R.  S.  2339.)  A  ditch, 
when  carried  across  mining  claims  already  located, 
must  recognize  their  prior  possessory  rights  and  pay 
damages  as  in  other  cases  of  condemnation. — Tit- 
comb  v.  Kirk,  5  M.  R.  10;  Jennison  v.  Kirk,  4  M.  R. 
504;  Noteware  v.  Sterns,  Id.  650.  It  seems  not  neces- 
sary that  the  'ditch  owners  should  incorporate  to 
condemn  a  right  of  way  for  ditches,  though  incor- 
poration in  such  cases  is  usual  and  is  always  as- 
sumed to  be  necessary  in  the  absence  of  constitu- 
tional provisions  dispensing  with  it  such  as  §  7,  Art. 
XVI,  Colorado  Constitution. 

Irrigation  Ditches  are  granted  the  same  rights  of 
way  and  the  same  right  to  appropriate  water  as 
ditches  for  mining  purposes  under  §  2339  above 
printed.  Neither  has  any  class  priority  over  the 
other. — Union  Co.  v.  Dangberg,  81  Fed.  73.  The 
first  in  time  is  first  in  right.  They  may  in  gen- 
eral be  located  and  recorded  in  the  same  form  as 
a  mining  ditch,  except  when  otherwise  regulated  by 
statute. 


186  .        RIGHT  OP  WAY. 

By  M.  A.  S.  §  2265,  a  map  was  required  to  be 
filed  with  the  County  Recorder  and  the  State  Enj 
gineer  on  which  were  to  be  endorsed  certain  details 
of  size  of  ditch,  etc.,  but  the  section  was  declared 
void  for  want  of  a  proper  title  to  the  Act  in  Lamar 
Co.  v.  Amity  Co.  26(  Colo.  370. 

Under  this  state  of  the  law  we  apprehend  that 
where  the  record  of  an  irrigating  ditch  is  required 
it  is  sufficient  under  the  form  on  page  182,  changing 
the  word  "mining"  to  "irrigating." 

Contract  to  enlarge  a  ditch  so  that  -it  would  be 
filled  from  a  certain  river  construed  to  mean  to 
make  a  ditch  of  a  certain  capacity  and  not  a  guar- 
anty that  the  water  would  be  there  to  fill  it. — Flick 
v.  Hahn's  Peak  Co.  66  Pac.  453. 

For  form  of  incorporation  of  ditch  company  see 
CORPORATIONS. 


RIGHT  OF  WAY,  ROADS,  TRAILS  AND  OTHER 
EASEMENTS. 


State  Power  to  Regulate  Easements. 

R.  S.  Sec.  2338. — As  a  condition  of  sale,  in  the  ab- 
sence of  necessary  legislation  by  Congress,  the  local  legis- 
lature of  any  State  or  Territory  may  provide  rules  for 
working  mines,  involving  easements,  drainage,  and  other  nec- 
essary means  to  their  complete  development ;  and  those  con- 
ditions shall  be  fully  expressed  in  the  patent. — Sec.  5,  A.  C. 
July  26,  1866. 

Highways. 

R.  S.  Sec.  2477. — The  right  of  way  for  the  construc- 
tion of  highways  over  public  lands,  not  .reserved  for  public 
uses,  is  hereby  granted. — Sec.  8,  A.  C.  July  26,  1866. 

By  ,the  terms  of  the  above  section  2477,  roads 
and  trails  may  be  established  without  any  license 
or  formality  over  the  public  domain. — Hobart  v. 
Ford,  15  M.  R.  236. 

By  a  very  early  statute  in  Colorado  all  claims 
are  made  subject  to  the  right  of  way  for  hauling 


RIGHT  OF  WAY.  187 

quartz  (M.  A.  8.  §  3145),  and  by  another  section 
(3158)  parol  license  to  build  a  road  is  valid  without 
deed.  Where  such  statutes  do  not  exist  at  the  time 
when  a  location  is  made  the  estate  of  the  miner  in 
his  claim  is  exclusive  and  a  road  cannot  be  laid 
across  it,  without  his  acquiescence,  except  by  con- 
demnation under  the  Eminent  Domain  Acts,  with 
compensation  in  damages. — Titcomb  v.  Kirk,  5  M.  R. 
10. 

Not  Divested  by  Patent. 

A  mineral  patent  does  not  divest  a  valid  high- 
way already  on  the  ground  when  patent  was  applied 
for. 

And  when  construed  in  connection  with  the  Act 
of  Congress  and  the  power  of  the  State  to  regulate 
easements  it  would  seem  that  the  patent  would  be 
subject  to  any  valid  subsisting  easement  affecting 
the  ground  prior  to  the  application.  Such  an  ease- 
ment saves  itself  and  needs  not  to  be  protected  by 
filing  an  adverse  claim. — Rockwell  v.  Graham,  15 
M.  R.  299;  Jacob  v.  Day,  44  Pac.  243. 

Annual  Labor. 

The  building  of  trails  or  roads  for  the  benefit 
of  a  claim  counts  as  annual  labor  or  towards  mak- 
ing up  the  $500  improvements  required  before  pat- 
enting. See  page  93. 

One  Tenant  in  Common  can  not  by  his  general 

deed  or  license  create  an  easement  over  the  common 
claim  in  favor  of  a  stranger. — Pfeiffer  v.  University, 
74  Gal.  156.  Nor  has  the  general  manager  of  a  mine, 
power  to  grant  an  easement. — Butte  Co.  v.  Montana 
Co.  55  Pac.  112. 

Tramways,  Canals,  Electric  Power  Lines. 

By  various  Acts  of  Congress  the  right  of  way 
through  public  lands  is  given  to  tramroads,  canals, 
ditches,  reservoirs  and  lines  for  distribution  of  elec- 
tric power.  Reference  to  the  several  Acts  and  the 
regulations  of  the  Secretary  of  the  Interior  promul- 
gated thereunder  will  be  found  in  31  L.  D.  13  and 


188  DUMP. 

503,  especially  with  regard  to  the  permit  required 
where  the  line  crosses  a  government  reservation. 
See  also  ^8  L.  D.  168;  27  L.  D.  495. 

By  A.  C.  May  21,  1896,  29  St.  L.  127,  oil  pipe 
lines  in  Colorado  and  Wyoming  are  given  free  right 
of  way  over  the  public  land. 

It  has  been  held  that  right  of  way  for  a  tramway 
over  a  located  claim  cannot  be  condemned. — Peo.  v. 
District  Court,  11  Colo.  U7. 

Provision  for  condemnation  by  electric  power 
companies  and  by  mines  seeking  to  connect  with 
railroads  is  found  in  the  Colorado-  Acts  of  1901, 
pages  131  and  238. 

Bight  of  Way  to  Tunnel. 
See  TUNNEL  SITE. 


DUMP. 


The  Right  to  Dump  is  but  little  if  at  all  affected 

by  statutory  regulations,  and  the  right  to 
dump,  as  of  necessity  or  by  custom,  across  lower 
claims,  has  never  been  brought  under  the  ad- 
judication of  the  Court  of  last  resort  in  any 
of  the  mining  States,  to  the  writer's  knowledge;  but 
in  the  case  of  Equator  Co.  v.  Marshall  Co.  U.  8.  C.  Ct. 
Colorado,  an  action  brought  to  restrain  the  dumping 
across  a  claim  lying  below  on  the  mountain  slope, 
it  was  Held,  as  of  course,  that  it  was  no  case  for  in- 
junction, unless  where  work  was  being  prevented, 
shafts  filled,  life  endangered  or  other  gross  and  con- 
tinuing injury,  and  the  remedy,  if  any,  was  by  action 
at  law  for  damages. 

In  a  later  suit  in  the  same  Court  between  the 
same  parties  it  was  held  that  when  continuous 
dumping  had  been  carried  on  by  owners  and  lessees, 
without  proof  or  attempt  at  proof,  as  to  the  injury 
done  by  each  party,  that  only  nominal  damages 


DUMP.  189 

could  be  recovered  against  an  owner,  and  that  the 
owners  were  not  responsible  for  the  injuries  done 
by  their  lessees;  and  there  being  no  proof  that  the 
defendant,  one  of  the  owners,  had  ever  taken  an 
active  part  in  the  management  of  the  mine,  the  jury 
found  for  the  defendant. — See  also  Little  Schuylkill 
Go.  v.  Richards,  10  M.  R.  661. 

In  the  case  of  continuous  and  indiscriminate 
dumping  over  lower  claims  it  may,  if  not  in  the 
meanwhile  regulated  by  statute,  be  finally  recognized 
as  a  controlling  custom  and  so  fixed  as  a  permanent 
easement  on  the  lower  claims. 

In  the  case  of  careless  or  wanton  injury  to  im- 
provements the  upper  claim  is,  of  course,  liable;  but 
the  right  to  dump  over  unimproved  and  valueless 
surface  ground  is  doubtless  such  an  easement  as  may 
be  allowed  by  State  Statute  (R.  S.  §  2338)  or  proved 
as  a  district  custom. 

A  Dump  Is  Real  Estate  and  passes  to  the  grantee 

without  special  mention.  But  a  contract  to  sell  the 
ore  found  in  it  need  not  necessarily  be  by  deed. — 
Smart  v.  Jones,  15  Com.  Bench,  N.  S.  717.  Dump 
deposited  on  the  land  of  another  and  allowed  to  re- 
main indefinitely  becomes  parcel  of  the  land. — La- 
custrine Co.  v.  Lake  Guano  Co.  82  N.  Y.  476;  Erwin's 
App.  16  M.  R.  91.  A  deposit  of  tailings  becomes  an 
accretion  to  the  land. — Rogers  v.  Cooney,  14  M.  R. 
85. 

Under  a  mining  lease  in  general  terms  the  les- 
see has  the  right  to  work  over  the  dump,  but  the 
wording  of  the  lease  may  be  such  as  to  exclude 
dumps  by  construction. — Boileau  v.  Heath,  L.  R. 
(1898),  2  Ch.  301;  Genett  v.  Delaware  Co.  43  N.  Y. 
Sup.  589;  25  N.  E.  922. 

The  right  to  dump  may  be  lost  by  allowing  ad- 
verse possession  of  the  ground  for  the  statutory 
period. — McLaughlin  v.  Del  Re,  16  Pac.  881.  Eject- 
ment lies  to  recover  ground  used  for  tailings. — 
Campbell  v.  Silver  Bow  Co.  49  Fed.  47. 


190  PLACERS. 

The  lessee  has  no  property  in  the  dump  after 
his  term  has  expired;  nor,  during  term,  to  minerals 
not  contemplated  in  his  lease. — Erwiris  App.  16  M. 
R.  91;  Doster  v.  Friedensville  Co.  21  Atl.  251. 

Construction  of  contract  to  work  dump. — Fos- 
ter v.  Lumbermen's  Go.  36  N.  W.  171. 

Appurtenances. 

It  has  been  held  that  the  grant  of  a  tunnel 
right  carries  with  it  as  an  appurtenance  the  right 
to  dump  on  the  grantor's  land  at  the  mouth  of  the 
tunnel.— Scheel  v.  Alhambra,  Co.  79  Fed.  821. 


PLACERS. 


Open  to  Location  and  Patent. 

R.  S.  Sec.  2329. — Claims  usually  called  "placers,"  in- 
cluding all  forms  of  deposit,  excepting  veins  of  quartz,  or 
other  rock  in  place,  shall  be  subject  to  entry  and  patent, 
under  like  circumstances  and  conditions,  and  upon  similar 
proceedings,  as  are  provided  for  vein  or  lode  claims ;  but 
where  the  lands  have  been  previously  surveyed  by  the  United 
States,  the  entry  in  its  exterior  limits  shall  conform  to  the 
legal  subdivisions  of  the  public  lands. — Sec.  12,  A.  C.  July 
9,  1870. 

Size  of  Claim. 

R.  S.  Sec.  2330. — Legal  subdivisions  of  forty  acres  may 
be  subdivided  into  ten-acre  tracts ;  and  two  or  more  per- 
sons, or  associations  of  persons,  having  contiguous  claims 
of  any  size,  although  such  claims  may  be  less  than  ten  acres 
each,  may  make  joint  entry  thereof ;  but  no  location  of  a 
placer-claim,  made  after  the  ninth  day  of  July,  eighteen 
hundred  and  seventy,  shall  exceed  one  hundred  and  sixty 
acres  for  any  one  person  or  association  of  persons,  which 
location  shall  conform  to  the  United  States  surveys  ;  and 
nothing  in  this  section  contained  shall  defeat  or  impair  any 
bona-fide  pre-emption  or  homestead  claim  upon  agricultural 
lands,  or  authorize  the  sale  of  the  improvements  of  any 
bona-fide  settler  to  any  purchaser. — Id. 

Twenty  Acres  to  One  Locator. 

R.  S.  Sec.  2331. — Where  placer-claims  are  upon  sur- 
veyed lands,  and  conform  to  legal  subdivisions,  no  further 
survey  or  plat  shall  be  required,  and  all  placer-mining 


PLACERS.  191 

claims  located  after  the  tenth  day  of  May,  eighteen  hundred 
and  seventy-two  shall  conform  as  near  as  practicable  with 
the  United  States  system  of  public-land  surveys,  and  the 
rectangular  sub-divisions  of  such  surveys,  and  no  such  loca- 
tion shall  include  more  than  twenty  acres  for  each  indi- 
vidual claimant ;  but  where  placer-claims  can  not  be  con- 
formed to  legal  subdivisions,  survey  and  plat  shall  be  made 
as  on  unsurveyed  lands  ;  and  where  by  the  segregation  of 
mineral  land  in  any  legal  subdivision  a  quantity  of  agricul- 
tural land  less  than  forty  acres  remains,  such  fractional 
portion  of  agricultural  land  may  be  entered  by  any  party 
qualified  by  law,  for  homestead  or  pre-emption  purposes. — 
Sec.  10,  A.  C.  May  10,  1872. 

Building  Stone  Act. 

That  any  person  authorized  to  enter  lands  under  the 
mining  laws  of  the  United  States  may  enter  lands  that  are 
chiefly  valuable  for  building  stone  under  the  provisions  of 
the  law  in  relation  to  placer  mineral  claims :  Provided, 
That  lands  reserved  for  the  benefit  of  the  public  schools  or 
donated  to  any  State  shall  not  be  subject  to  entry  under 
this  act. — A.  C.  Aug.  k,  1892. — 27  8 tat.  L.  8^8. 

Location  and  Certificate — Notice  and  Stakes. 

M.  A.  S.  Sec.  3136. — The  discoverer  of  a  placer  claim 
shall,  within  thirty  days  from  the  date  of  discovery,  record 
his  claim  in  the  office  of  the  recorder  of  the  county  in  which 
said  claim  is  situated,  by  a  location  certificate,  which  shall 
contain  :  First,  the  name  of  the  claim,  designating  it  as  a 
placer  claim ;  second,  the  name  of  the  locator ;  third,  the 
date  of  location ;  fourth,  the  number  of  acres  or  feet  claimed ; 
and  fifth,  a  description  of  the  claim,  by  such  reference  to 
natural  objects  or  permanent  monuments  as  shall  identify 
the  claim. 

Before  filing  such  location  certificate  the  discoverer 
shall  locate  his  claim  :  First,  by  posting  upon  such  claim 
a  plain  sign  or  notice,  containing  the  name  of  the  claim, 
the  name  of  the  locator,  the  date  of  discovery,  and  the  num- 
ber of  acres  or  feet  claimed ;  second,  by  marking  the  sur- 
face boundaries  with  substantial  posts,  and  sunk  into  the 
ground,  to-wit :  one  at  each  angle  of  the  claim. — March  12, 
1879. 

Legislation  Concerning  Placers. 

Placer  claims  were  not  covered  by  the  original 
Act  of  1866. 

The  Act  of  1870  brought  them  within  Congres- 
sional recognition  and  made  them  open  to  patent. 

They  have  been  at  all  times  regulated  as  to  size, 
labor,  mode  of  location,  etc.,  by  the  district  rules 
to  a  much  greater  extent  than  lode  claims. 


192  PLACERS'. 

Placer  Defined. 

As  commonly  and  properly  understood  a  placer 
claim  means  a  location  in  which  gold  is  found  loose 
in  sand  or  gravel  and  not  in  the  vein  or  in  place; 
it  includes  gulch  claims,  old  channels,  cement  and 
drift  diggings. 

Mining  Claims  Divided  Into  Lodes  and  Placers. 

But  the  U.  S.  Mining  Acts  make  an  arbitrary 
division  of  all  minerals  into  two  classes,  to  wit: 
lodes  and  placers.  All  deposits  of  metallic  minerals 
in  place  are  called,  when  located,  lode  claims,  and 
all  deposits  of  other  minerals  in  place  or  not  in 
place,  are  placers.  Arbitrary  as  this  division  is,  it 
is  the  only  construction  allowable  to  the  statute, 
was  at  once  adopted  by  the  Land  Office  and  has  been 
followed  by  the  Courts. — Gregory  v.  Pershbaker,  15 
M.  R.  602. 

What  Is  Classed  As  Placers. 

Deposits  of  alum,  asphaltum,  soda  and  sulphur 
may  be  patented  as  placer  ground. — Circular  1  L.  D. 
572,  Rev.  Ed.  561;  also  kaolin  or  fire  clay,  1  L.  D. 
579  Rev.  Ed.  565;  17  Id.  550;  borax  beds,  2  Id.  707; 
auriferous  cement,  marble,  mica  and  slate,  25  Id.  354; 
gypsum,  Id.;  29  Id.  181;  iron,  when  in  the  form  of 
a  deposit,  1  L.  0.  34;  limestone,  17  L.  D.  82;  phos- 
phate, 18  Id.  58;  26  Id.  600. 

Oil  Lands. 

Ever  since  the  passage  of  the  placer  mining 
Act,  lands  valuable  for  deposits  of  petroleum  were 
considered  as  open  to  location  and  patent  as  placer 
claims  and  as  such,  records  were  made  followed  by 
entries  and  patents  as  a  matter  of  ordinary  course. 
—4  L.  D.  60;  284;  16  L.  D.  117.  And  such  action 
of  the  Land  Office  was  followed  by  the  courts  in 
dealing  with  oil  located  or  patented  as  placer  ground 
without  question  of  its  regularity. — Gird  v.  Califor- 
nia Oil  Co.  60  Fed.  532;  Van  Horn  v.  State.  40  Pac. 
964. 


PLACERS.  193 

After  this  unbroken  procedure  of  more  than 
twenty  years,  the  Land  Office  in  1896  (Union  Oil 
Co.  23  L.  D.  222)  abruptly  held  that  oil  was  not  a 
mineral  and  oil  lands  therefore  not  subject  to  entry. 
This  was  immediately  followed  by  an  Act  of  Con- 
gress making  such  lands  in  terms  patentable  as  plac- 
ers. The  ruling  itself  which  induced  the  confusion 
was  later  reversed  by  the  Secretary  of  the  Interior. 
— 25  L.  D.  351.  The  judicial  rulings  that  oil  is  a 
mineral  have  been  uniform. — Thompson  v.  Noble,  11 
M.  R.  137;  Gill  v.  Weston,  110  Pa.  St.  317  barring 
the  anomalous  case  of  Dunham  v.  Kirkpatrick,  101 
Pa.  St.  36. 

Salines  were  the  subject  of  congressional  legisla- 
tion for  many  years  prior  to  the  Mining  Acts  of 
1866-72.  Under  those  Acts  they  were  still,  treated 
as  neither  lode  nor  placer  but  open  to  entry  under 
special  statutes  until  January  31,  1901,  when  they 
were  declared  to  be  placer  ground. — 31  St.  L.  145. 

Quarries — Building  Stone. 

It  was  held  under  the  original  Act  of  1870  that 
a  quarry  of  building  stone  could  be  entered  and  pat- 
ented as  placer  ground. — 3  L.  D.  116.  But  the  decis- 
ion to  such  effect  by  the  department  was  overruled  in 
Conlin  v.  Kelly,  12  L.  D.  1;  followed  by  the  Delaney 
case,  17  L.  D.  120,  excluding  both  building  stone  and 
glass  sand  as  non-mineral.  Stone  of  special  commer- 
cial value  however  was  treated  as  mineral  and  placer. 
—15  L.  D.  370;  16  Id.  508. 

In  1892  was  passed  the  Special  Act  above  printed 
stating  in  terms  that  "lands  chiefly  valuable  for 
building  stone"  are  to  be  considered  as  placer  claims. 
—23  L.  D.  329,  516.  Even  this  act  would  not  allow 
the  entry  of  mere  rock  land  if  it  were  not  known  to 
have  greater  value  for  legitimate  mining  of  any  de- 
scription.— 23  L.  D.  353. 

A  ledge  of  limestone  containfng  no  form  of  ore 
cannot  be  located  as  either  a  lode  or  placer  claim. — 
Wheeler  v.  Smith,  32  Pac.  78Jh  The  location  in  this 
case  was  prior  to  the  passage  of  the  Stone  Act  of 


194  PLACERS. 

1892.  It  has  been  since  expressly  ruled  that  it  cannot 
be  patented  as  a  lode  claim. — 23  L.  D.  353,  395;  but 
may  be  located  as  a  placer  claim. — 17  L.  D.  82. 

Lands  valuable  chiefly  for  stone  may  be  sold  on 
the  same  terms  as  timber  lands,  that  is  160  acre 
tracts  at  $2.50  per  acre. — Act  of  June  3,  1878,  1  Sup. 
167,  and  August  4,  1892,  2  Sup.  65. 

Location  Without  Specific  Mineral  Value. 

Some  of  the  decisions  of  the  department  aided 
by  the  Act  of  1892  allowing  quarries  to  be  entered 
were  sufficiently  loose  to  allow  a  claim  to  be  laid 
upon  any  ground;  for  either  what  can  be  called 
building  stone,  or  a  color  of  gold  in  the  pan,  can  be 
found  practically  anywhere — but  the  obviously 
needed  declaration  was  at  length  made  that  land 
could  not  be  taken  up  as  placer  ground  on  mere 
wash  or  because  a  color  could  be  panned,  its  real 
value  being  on  account  of  its  proximity  to  lode  claims. 
It  must  contain  mineral  in  paying  quantities. — 
Royal  K.  Placer,  13  L.  D.  86.  Nor  where  it  had  no 
characteristic  of  any  form  of  placer. — Searle  Placer, 
11  L.  D.  441. 

Discovery  or  Knowledge  of  Mineral  Value. 

Unless  specifically  required  by  State  Statute  or 
District  Rule  no  discovery  shaft  is  required,  but  the 
Act  of  Congress  implies  that  mineral  shall  have  been 
found  before  the  right  to  locate  upon  the  same  as  a 
placer  claim  accrues. — 13  L.  D.  86. 

A  discovery  of  the  mineral  sought  for  upon 
the  claim  is  held  to  be  essential  to  a  valid  placer  lo- 
cation of  any  kind.  Indications  or  knowledge  of  its 
existence  upon  adjoining  lands  is  not  enough. — Ne- 
vada Oil  Co.  v.  Miller,  97  Fed.  688;  Nevada  Co.  v. 
Home  Co.  98  Fed.  673;  Olive  Co.  v.  Olmstead,  103 
Fed.  568. 

A  discovery  pit  or  shaft  on  a  vein  shows  to  the 
eye  a  mineral  formation  specifically  distinct  from 
the  surrounding  country.  A  pit  or  shaft  on  placer 
gravel  shows  nothing  of  that  sort.  A  pit  or  shaft 
on  any  of  the  various  minerals  claimed  as  statutory 


PLACERS'.  195 

placers  might  or  might  not  show  such  indication. 
Such  working  is  not  essential  to  the  disclosure  of 
mineral  value  on  this  class  of  claims.  But  it  is 
clear  from  the  implied  requirement  of  knowledge  or 
discovery  of  mineral  character,  that  the  ground 
about  to  be  located  must  have  a  special  value  as 
either  placer  proper  or  for  some  special  deposit 
treated  as  placer  ground  under  the  statute,  and  that 
merely  surveying  and  recording  vacant  land  as  and 
for  placer  ground  without  known  value  under  either 
class  is  a  void  proceeding  when  properly  contested  or 
attacked. 

A  Separate  Discovery    on    Each    Twenty    Acres 

is  not  required  where  there  has  been  a  joint  loca- 
tion of  160  acres. — McDonald  v.  Montana  Co.  35  Pa",. 
668;  Union  Oil  Co.  25  L.  D.  351  overruling  previous 
Land  Office  holding  to  the  contrary. — L.  0.  Reg.  19. 

Use  of  Names — Nominal  Association. 

It  requires  eight  l)ona  fide  locators  to  lawfully 
claim  160  acres.  The  names  of  nominal  parties  are 
often  used  to  locate  placer  ground,  and  such  nominal 
association  is  not  questioned  in  land  office  proceed- 
ings, but  its  validity  may  well  be  doubted  when  con- 
tested in  court.  Such  use  of  names  with  agreement 
to  reconvey  without  consideration,  has  been  held  void 
as  against  public  policy. — Mitchell  v.  Cline,  24  Pac. 
164;  Durant  v.  CorMn,  94  Fed.  382. 

In  Gird  v.  California  Oil  Co.  60  Fed.  532  the  court 
held  to  a  very  strict  construction  on  this  point,  and 
ruled  that  where  three  persons  in  the  employ  of  a 
corporation  located  sixty  acres  it  was  good  only  to 
the  extent  of  a  single  location  of  twenty  acres. 

The  Excess  over  the  acreage  allowed  to  be  located 

may  be  taken  up  by  a  stranger. — Gohres  v.  Illinois 
Co.  67  Pac.  666. 

Size  of  Claim  That  May  Be  located. 

The  amount  of  ground  which  may  be  located  is 
limited  to  20  acres  to  each  individual  or  person;  of 
course  a  corporation  is  one  person  without  reference 


196  PLACERS. 

to  the  number  of  its  incorporators.  An  association 
of  persons  may  locate  a  claim  in  common  not  ex- 
ceeding 20  acres  to  each  individual  in  the  association, 
and  not  exceeding  160  acres  to  the  entire  associa- 
tion. 

Conformation  to  IT.  S.  Sectional  Subdivisions. 

The  Act  speaks  of  making  survey  for  the  placer 
claim  conform  as  near  as  possible  with  the  rectangu- 
lar subdivisions  of  the  public  lands,  but  under  the 
practice  this  provision  has  been  almost  wholly  dis- 
regarded, except  on  subdivided  sections. — 2  L  D.  764; 
20  L.  D.  485. 

Procedure  to  Complete  Location. 

Presuming  that  free  gold  or  some  other  valuable 
deposit  other  than  a  lode  in  place,  is  known  to  exist 
on  the  ground,  the  claimant,  if  he  desires  the  benefit 
of  the  30  days  allowed  the  discoverer,  should  place 
a  notice  conspicuously  as  follows: 

FORM  OF  PRELIMINARY  NOTICE. 

Gold  Bug  Placer  Claim. 

The  undersigned  claims  20  acres  for  placer  mining 
purposes  with  30  days  from  date  to  complete  location  and 
record.  W.  W.  MCCONNELL. 

January  9,  1903. 

We  do  not  consider  that  the  above  notice  is  es- 
sential in  all  cases,  but  it  is  customary.  If  the 
claimant  was  the  actual  first  discoverer  of  the  min- 
eral it  might  not  be  required;  but  if  the  existence 
of  the  gold  or  other  deposit  had  been  a  matter  of 
common  notoriety,  we  do  not  see  why  one  person 
more  than  another  could  claim  the  time  allowed  to  a 
discoverer  without  some  such  notice. 

Proceeding  to  perfect  the  location  the  claimant 
must  post  upon  the  claim  the  statutory  notice  (page 
191)  which  may  be  in  form  as  follows: 

LOCATION   NOTICE. 

Nellie  Moore  Placer  Claim. 

The  undersigned  claims  20  acres  for  placer  mining  pur- 
poses, as  staked  'on  this  ground.  Date  of  discovery,  Jan- 
uary 9,  1903.  JOSIAH  WINCHESTER. 


PLACERS.  197 

SECOND  FORM. 

Ballarat  Placer  Claim. 

The  undersigned  claims  1320  feet  in  length  along  the 
gulch  by  660  feet  in  breadth,  for  placer  mining  purposes,  as 
staked  on  this  ground.  Discovered  January  9,  1903. 

JOHN  A.  WHITE. 

Dates. 

It  will  be  noted  that  the  notice  on  the  stake  in 
Colorado,  must  contain  the  date  of  discovery  while 
the  record  must  contain  the  date  of  location.  The 
date  when  the  posting  and  staking  are  completed 
would  be  such  date  of  location. 

Place  of  Posting. 

Where  not  directed  by  statute  .or  district  rule 
such  ^notice  should  be  posted  at  the  center  point  of 
the  claim;  or  at  some  point  where  the  prospecting 
pits  show  actual  work.  It  should  be  conspicuous 
and  either  close  to  the  apparent  discovery  or  at  the 
center  as  above  suggested. 

Stakes  and  Ties. 

The  locator  then  stakes  his  claim,  placing  a 
"substantial  post,"  "sunk  into  the  ground"  at  each 
angle  of  the  claim.  No  center  stakes  are  required. 
Accuracy  and  strictness-  in  fixing  and  marking  the 
boundaries  cannot  be  too  severely  urged.  Of  course 
some  of  the  angles  must  be  tied  to  "natural  objects" 
or  "permanent  monuments"  in  order  to  make  a 
proper  location  certificate  or  record.  We  advise  the 
same  as  in  case  of  lode  claim.  (See  page  52.)  A 
failure  to  stake  invalidates  the  claim. — Anthony  v. 
Jillson,  16  M.  R.  26. 

Location  by  Trespass. 

The  rule  that  a  location  cannot  be  initiated  by 
trespass  upon  a  prior  valid  possession  applied  in 
contest  where  both  claims  were  placers. — Kirk  v. 
Meldrum,  65  Pac.  633. 

Staking  Government  Subdivisions. 

It  has  been  decided  that  the  Statute  requiring 
the  boundaries  to  be  marked  is  not  complied  with  by 


198  PLACERS. 

calling  for  a  government  subdivision  in  the  notice  or 
record;  that  the  locator  must  stake  out  his  claim 
the  same  as  if  he  were  locating  on  a  private  survey. 
—White  v.  Lee,  78  Gal.  593;  21  Pac.  363;  Contra,  22 
L.  D.  409. 

Record. 

The  notice  being  erected  and  the  ground  sur- 
veyed and  staked,  the  location  is  complete  and  ready 
for  record,  the  location  certificate  being  in  form  as 
follows : 

FORM   OF  PLACER  LOCATION   CERTIFICATE. 
KNOW    ALL     MEN    BY    THESE    PRESENTS,    That    I,     Joslah 

Winchester,  of  the  City  and  County  of  Denver,  State  of  Colo- 
rado, claim,  by  right  of  discovery  and  location,  the  Nellie 
Moore  placer  claim,  containing  twenty  acres  (or  1320  feet  in 
length  by  660  feet  in  width),  situate  in  Cripple  Creek  Min- 
ing District,  County  of  Teller,  State  of  Colorado,  bounded  and 
described  as  follows,  to  wit :  Beginning  at  stake  at  corner 
No.  1  :  (here  insert  description,  giving  a  course  to  each  line, 
and  tying  one  or  more  corners  to  a  government  corner,  well 
known  natural  object  or  permanent  monument,  etc.}  Date 
of  discovery,  Jan.  9,  1903.  Date  of  location,  Jan  15,  1903. 
Date  of  Certificate,  Jan.  16,  1903. 

JOSIAH  WINCHESTER. 

Description  by  claiming  so  many  feet  along  the 
creek  and  so  many  feet  on  each  side  was  sustained 
in  McKinley  Co.  v.  Alaska  Co.  183  U.  S.  563. 

An  amended  location  certificate  may  be  filed  the 
same  as  allowed  for  lode  claims. — Kirk  v.  Meldrum, 
&5  Pac.  634. 

The  Statutory  Requirements  of  the  other  mining 
States  which  provide  for  the  manner  of  locating 
placer  claims,  are  as  follows: 

Arizona. 

1.  Post   notice   containing   name   of   the    claim, 
name  of  locator,  date  of  location  and  number  of  acres 
claimed,  with  reference  to  natural  object  or  perma- 
nent monument. 

2.  Mark  surface  boundaries  with  post  or  monu- 
ment of  stones  at  each  angle  of  claim;   posts  must 
be  4  inches  square  by  4  ft.  6  inches  in  length,  set 


PLACERS'.  199 

one  foot  in  ground,  surrounded  by  mound  of  stones 
or  earth  4  ft.  in  diameter  by  3  ft.  in  height. 

3.     Within  60  days  after  date  of  location,  record 
with  County  Recorder  a  copy  of  the  location  notice. 

Idaho. 

1.  Place  post  or  monument,  as  required  in  loca- 
tion of  lode  claims,  at  each  corner,  and  place  on  one 
of  these  a  notice  of  location  containing  date  of  loca- 
tion, name  of  locator,  name  and  dimensions  of  claim, 
the  mining  district   (if  any),  and  County;    also  the 
distance  from  such  post  or  monument  to  such  natural 
object  or  permanent  monument,   if  any   such   there 
be,  as  will  fix  and  describe  in  the  notice  itself,  the 
location  of  the  claim. 

2.  Within   15   days   after   making  the   location, 
make  an  excavation  on  the  claim,  for  the  purpose 
of  prospecting  the  same,  of  not  less  than  100  cubic 
feet. 

3.  Within    30    days    after    the    location,    record 
with  County  Recorder  or  with  Deputy  Recorder  of 
mining  district,   a  substantial  copy   of  the  location 
notice,  verified  as  in  the  case  of  lode  claims  (p.  62). 

Montana. 

1.  Post  notice  at  point  of  discovery,  containing 
name  of  the  claim,  name  of  locator,  date  of  location 
and  number  of  acres  or  superficial  feet  claimed. 

2.  Within    60    days   from   date   of   posting,    the 
equivalent  in  work  of  a  10-foot  shaft  must  be  done 
upon  the  claim. 

3.  Within  30  days  from  date  of.  posting,  mark 
boundaries  in  same  manner  as  required  in   case  of 
lode  claims  (p.  63). 

4.  Within    60    days    from    date   of   posting,    file 
with  Clerk  of  County  a  declaratory  statement  con- 
taining  same   as   notice    posted,    adding    description 
of  claim  with  reference  to  natural  object  or  perma- 
nent  monument,    dimensions   and   location    of   work 
done  and  the  location  and  description  of  each  cor- 
ner,   with    the    markings   thereon.      This    statement 
must  be  verified  by  one  of  the  locators  (p.  63). 


200  PLACERS. 

Nevada. 

1.  Post  upon  a  tree,  rock  in  place,  stone,  post 
or   monument,    a   notice   of   location   containing   the 
name  of  the  claim,  name  of  locator,  date  of  location, 
and  number  of  feet  or  acres  claimed. 

2.  Mark   surface  boundaries   and    the    location 
point  in  the  same  manner  and  by  same  means   re- 
quired   for   lode   claims;     on     surveyed     land    when 
taken  by  legal   subdivision,   only  the  location   point 
need  be  marked  (p.  63). 

3.  Within  ninety  days  after  posting  perform  not 
less  than   $20  worth  of  labor  for  development,   and 
record    with   Mining   District  Recorder   and    County 
Recorder,  a  certificate  stating  same  as  posted  notice, 
and   adding   description   of   claim   with   reference   to 
natural   objects   or   permanent   monuments   and    the 
kind  and  amount  of  work  done  and  the  place  where 
done. 

Washington. 

1.  Post  in  a  conspicuous  place  at  the  point  of 
discovery  ,a   notice   containing   name    of   the    claim, 
name  of  the  locator,  date  of  discovery  and  posting  of 
notice,  which  is  considered  date  of  location,  descrip- 
tion  by   reference   to   legal    subdivisions    if   on    sur- 
veyed lands,  otherwise  with  reference  to  natural  ob- 
jects or  permanent  monuments. 

2.  Within    30    days    from     discovery     distinctly 
mark  the  location  on  the  ground  so  that  its  boun- 
daries may  be  readily  traced;  marking  must  be  done 
even  if  claim  is  located  by  legal  subdivisions. 

3.  Within  30  days  from  discovery  record  in  the 
office  of  the  Auditor  of  the  County  a  certificate  of 
location  containing  the  same  as  the  posted  notice. 

4.  Within  60  days  from  discovery  perform  labor 
equivalent  in  the  aggregate  to  at  least  $10  worth  for 
each  20  acres. 

5.  Upon  performance  of  such  labor  file  with  the 
County  Auditor  an  affidavit  showing  the  nature  and 
kind  of  work  done. 


PLACERS.  201 

These  statutory  provisions  do  not  apply  to  oil 
placer  locations. — Acts  1901. 

Wyoming. 

1.  Securely  fix   upon  the   claim   a  plain   notice 
containing  the  name  of  the  claim,  name  of  the  loca- 
tors, date  of  discovery  and  number  of  feet  or  acres 
claimed. 

2.  Mark  the  boundaries  by  substantial  posts  or 
stone  monuments  at  each  corner  of  the  claim. 

3.  Within  90  days  from  discovery   record  with 
the  County  Clerk    a    location    certificate    containing 
same  as  posted  notice  and  adding  date  of  location 
and   description  by  such   designation   of  natural   or 
fixed  objects  as  shall  identify  the  claim  beyond  ques- 
tion. 

Alaska,  California,  New  Mexico,  North  and  South 
Dakota,  Oregon  and  Utah  have  no  specific  statu- 
tory provisions  for  the  manner  of  'locating  and  re- 
cording placer  claims,  and  in  those  States  such  lo- 
cations are  governed  by  district  rules,  where  such 
rules  exist,  and  by  the  terms  of  A.  C.  §  2324.  See 
p.  59. 

A  placer  location  made  according  to  the  forms 
given  for  Colorado,  would  doubtless  be  sufficient  in 
any  of  the  above  named  States  where  district  rules 
do  not  require  more  specific  details. 

No  Reservation  Against  Patentee. 

.When  patented  under  a  location  of  the  ground 
as  a  "placer  mining  or  stone  quarry  claim"  the  pat- 
entee owns  all  minerals  found  within  its  bounds  ex- 
cept known  lodes. — Freezer  v.  Sweeney,  21  Pac.  20. 
And  doubtless  he  owns  to  the  same  extent  under  a 
location  before  patent  subject  to  the  right  to  locate 
lode  discoveries  over  the  same  ground,  and  except 
lodes  apexing  outside  but  dipping  underneath. 

Homestead. 

Lands  located  and  used  as  a  placer  and  also  used 
as  a  residence  by  the  owner,  may  be  selected  by  him 
as  a  homestead,  under  the  State  law  of  exemptions, 


202  PLACER  CONTAINING  LODE. 

the  question  of  title  in  the  United  States  being  ex- 
cluded.— Gaylord  v.  Place,  33  Pac.  484. 

Area  in  Feet  or  Acres. 

By  the  following  table  the  number  of  feet  nec- 
essary to  include  any  desired  number  of  acres  when 
in  the  shape  of  a  square  or  parallelogram  may  be 
ascertained: 

Claim       660  x     330  feet  contains  5        acres. 

500  x     500  "  "  5.73       " 

660  x     660  "  "  10 

1320  x     660  "  "  20 

800  x  1089  "  "  20 

933%  x     933%  "  "  20 

1320  x  1320  "  40 

2640  x  2640  "  160 

43560  square  feet  equal  one  acre.  A  square 
208.71*  feet  in  length  and  width  makes  one  acre. 


PLACER  CONTAINING  LODE. 


Claim  Intersected  by  Lode. 

R.  S.  Sec.  2333. — Where  the  same  person,  association, 
or  corporation  is  in  possession  of  a  placer-claim,  and  also 
a  vein  or  lode  included  within  the  boundaries  thereof,  appli- 
cation shall  be  made  for  a  patent  for  the  placer-claim,  with 
the  statement  that  it  includes  such  vein  or  lode,  and  in  such 
case  a  patent  shall  issue  for  the  placer-claim,  subject  to  the 
provisions  of  this  chapter,  including  such  vein  or  lode, 
upon  the  payment  of  five  dollars  per  acre  for  such  vein 
or  lode  claim,  and  twenty-five  feet  of  surface  on  each  side 
thereof.  The  remainder  of  the  placer-claim,  or  any  placer- 
claim  not  embracing  any  vein  or  lode-claim,  shall  be  paid 
for  at  the  rate  of  two  dollars  and  fifty  cents  per  acre, 
together  with  all  costs  of  proceedings ;  and  where  a  vein 
or  lode,  such  as  is  described  in  section  twenty-three  hun- 
dred and  twenty,  is  known  to  exist  within  the  boundaries 
of  a  placer-claim,  an  application  for  a  patent  for  such 
placer-claim  which  does  not  include  an  application  for  the 
vein  or  lode  claim  shall  be  construed  as  a  conclusive  decla- 
ration that  the  claimant  of  the  placer-claim  has  no  right 
of  possession  of  the  vein  or  lode  claim  ;  but  where  the  ex- 


PLACER  CONTAINING  LODE.  203 

istence  of  a  vein  or  lode  in  a  placer-claim  is  not  known, 
a  patent  for  the  placer-claim  shall  convey  all  valuable 
mineral  and  other  deposits  within  the  boundaries  thereof. — 
Sec.  11,  May  10,  1872. 

Known  Lodes  Excluded. 

An  application  for  patent  to  a  placer  claim  is 
not  supposed  to  include  any  known  lode  running 
through  it,  unless  such  lode  is  owned  by  the  appli- 
cant and  especially  designated  in  the  application, 
but  it  covers  any  after  discovered  lode. — O'Keefe  v. 
Cannon,  52  Fed.  898. 

The  placer  patentee  acquires  no  title  to  lodes 
known  to  exist  prior  to  and  not  included  in  his  appli- 
cation.— Clary  v.  Hazlitt,  67  Col.  286. 

The  exception  of  known  lodes  does  not  apply  to 
placer  patents  issued  on  entries  prior  to  May  10,  1872. 
— Cranes  G.  Co,  v.  Scherrer,  66  Pac.  487. 

What  Are  Known  Lodes. 

Where  a  lode  within  the  placer  lines  has  been 
discovered,  located  and  recorded,  and  has  kept  up  its 
labor  to  the  time  of  the  placer  application,  it  is  clear 
that  such  is  a  "known  lode"  beyond  any  possible 
danger  of  construction. 

But  where  lodes,  though  known,  have  not  been 
considered  worth  locating,  or  after  location  have  been 
abandoned,  or  where  they  have  been  known  as  a 
matter  of  common  knowledge  to  be  within  the  lines, 
as  in  the  case  of  outcrops  not  considered  worth  work- 
ing— these  points  admit  of  more  or  less  controversy. 

In  the  case  of  Reynolds  v.  The  Iron  Silver  Co.  15 
M.  R.  591,  the  court  ruled  that  the  lode  in  or  under- 
lying the  Wells  &  Moyer  placer  being  shown  to  be 
known  to  the  applicants,  could  not  be  recovered  by. 
them  in  ejectment  as  against  adjoining  lode  owners 
who  had  worked  beyond  their  side  lines  into  the 
deposit. 

Known  But  Not  of  Known  Value. 

It  has  been  with  much  reason  held  that  a  lode 
or  vein  though  known  to  exist  but  having  no  such 
value  as  would  justify  its  exploration  or  working,  or 


204  PLACER  CONTAINING  LODE. 

by  like  expressions  to  the  same  effect — is  not  within 
the  exception  of  the  patent. — O'Keefe  v.  Cannon,  52 
Fed.  898;  Brownfield  v.  Bier,  39  Pac.  461;  Butte  Co.  v. 
Sloan,  40  Pac-  217.  It  must  be  a  lode  of  known  prac- 
tical value  for  working. — Montana  Ry.  v.  Migeon,  68 
Fed.  811;  77  Fed.  2J9;  Casey  v.  Thieviege,  48  Pac. 
394. 

The  allegation  in  an  answer  that  there  were  no 
known  deposits  of  sufficient  value  to  pay — is  a  proper 
plea  of  no  known  lodes  and  does  not  state  a  conclu- 
sion of  law. — O'Keefe  v.  Cannon,  52  Fed.  898. 

Known  But  Not  Recorded. 

It  was  held  in  Noyes  v.  Mantle,  15  M.  R.  611,  that 
a  located  claim  was  a  known  lode.  But  in  Iron  Sil- 
ver Co.  v.  Mike  &  Starr  Co.  143  U.  8.  394,  17  M.  R. 
the  Supreme  Court  go  further  and  hold  that  it  is 
sufficient  to  exclude  it  that  it  be  a  lode  known  to 
exist,  and  that  where  a  lode  has  been  notoriously  cut 
in  a  tunnel  within  the  claim,  it  was  such  a  disclosure 
of  the  vein  as  to  bind  the  patentee  to  a  knowledge  of 
it.  And  while  holding  (p.  404)  that  not  every  out- 
crop or  crevice  suggesting  mineral  would  constitute 
a  known  lode  within  the  class  to  be  excepted,  yet 
any  vein  disclosed  and  understood  to  be  of  value  was 
excluded,  and  whether  a  vein  was  known  and  was 
of  such  a  character  as  to  be  excluded,  was  a  question 
of  fact  for  nisi  prius  decision  by  jury. 

The  mere  fact  that  a  lode  record  had  been  made 
over  the  ground  now  claimed  as  placer  does  not 
prove  that  there  was  a  vein  on  which  to  record. — 23 
L.  D.  476;  Butte  Co.  v.  Sloan,  40  Pac.  217.  And  when 
the  fact  of  lode  or  no  lode  has  been  left  on  conflict- 
ing evidence  to  the  jury  the  court  will  not  set  their 
finding  aside. — Id. 

To  Whom  Known. 

In  the  Mike  d  Starr  case  it  was  held  that  it  must 
be  known  to  the  applicant  or  to  the  community  in 
general.  If  obvious  to  casual  inspection,  knowledge 
was  chargeable  to  the  owner.  But  a  lode  discovered, 
located  and  of  record  before  the  patent  application, 


PLACER  CONTAINING  LODE.  205 

is   a  known  lode   whether   or  not  the   patentee   had 
knowledge  of  it. — Noyes  v.  Mantle,  15  M.  R.  611. 

Date  of  Discovery  Material. 

It  had  been  held  that  the  lode  (to  be  an  excepted 
known  lode)  must  be  discovered  before  entry,  but  the 
date  of  application  is  now  the  conceded  date. — Dahl 
v.  Raunheim,  16  M.  R.  214;  Mike  d  Starr  case,  supra. 

Of  course,  the  application  referred  to  is  the  ap- 
plication upon  which  the  patent  ultimately  issues 
and  the  date  of  application  is  the  date  of  filing  the 
paper  "M"  (post  p.  396)  in  the  course  of  proceedings 
to  obtain  patent;  but  in  Clipper  Co.  v.  Eli  Co.  68 
Pac.  286,  the  opinion  seems  to  treat  an  application 
which  had  been  dismissed  by  the  Land  Office  as  hav- 
ing given  a  vested  right  to  all  lodes  not  known  to 
exist  at  date  of  such  dismissed  proceeding. 

Necessity  of  Adverse  or  Protest. 

If  a  known  lode,  whether  held  by  strangers,  or 
not  located  at  all,  though  known  to  exist,  is  under 
the  express  terms  of  the  statute  as  recognized  by 
many  decisions  excepted  from  the  grant — it  would 
seem  a  necessary  deduction  that  it  need  not  file  any 
adverse  claim  to  preserve  its  rights.  But  if  it  be 
neglected  either  to  procure  an  exclusion  from  the 
placer  survey  or  to  adverse  and  the  placer  patent 
issues,  the  Land  Office  will  not  as  of  course  entertain 
an  application  to  patent  the  lode.  Before  the  appli- 
cation will  be  received  it  requires  a  hearing  in  the 
local  Land  Office  after  notice  to  the  placer  patentee 
as  to  whether  in  fact  the  lode  was  known  to  exist, 
and  unless  upon  such  hearing  the  fact  is  affirma- 
tively so  found,  it  denies  the  application.— South 
Star  Lode,  20  D.  D.  204;  27  Id.  676. 

If  the  finding  is  that  the  lode  was  known,  the 
placer  patentee  is  still  at  liberty  to  contest  the  lode 
application  by  showing  and  securing  a  judicial  de- 
termination upon  verdict  that  the  lode  was  not 
known  to  exist. — Alice  M.  Co.  v.  Street,  U.  S.  Circuit 
Court,  Denver,  unreported. 


206  PLACER  CONTAINING  LODE. 

The  practice  of  the  Land  Office  has  not  been  uni- 
form upon  this  point,  and  for  some  years  prior  to  the 
South  Star  case  it  had  refused  all  applications  to  en- 
ter lode  claims  over  placers  except  by  consent  of  the 
placer  patentee  on  the  ground  that  the  ex  parte  proof 
of  no  known  lodes  originally  made  by  the  applicant 
definitely  established  the  non-existence  of  known 
lodes.  And  yet,  in  instances  a  patent  to  both  lode 
and  placer  had  been  granted,  as  in  Iron  S.  Co.  v. 
Campbell,  16  M.  R.  218.  In  that  case  each  party  hav- 
ing his  proof  of  legal  title  in  the  shape  of  a  paten-t, 
the  question  of  priority  was  held  to  be  an  extrinsic 
fact  to  be  found  and  settled  by  the  jury  under  the 
instructions  of  the  court. 

The  patent  is  held  conclusive  evidence  that  the 
land  conveyed  was  placer  ground! — Dahl  v.  Raun- 
heim,  16  M.  R.  214;  Butte  Co.  v.  Sloan,  40  Pac.  217. 
There  are  expressions  in  both  these  opinions  which, 
taken  by  themselves,  would  read  that  the  patent  was 
conclusive  proof  that  no  lode  existed,  but  to  so  de- 
cide on  consideration  of  the  whole  case  was  evidently 
not  the  intention  of  the  court. 

The  practical  conclusion  from  this  vexed  state  of 
the  title,  arising  from  the  unwise  reservation  from 
a  government  grant  of  a  piece  of  land  with  no  defined 
bounds  and  even  without  acknowledged  existence,  is 
that  a  lode  within  placer  lines  should  assert  itself  by 
adverse  against  the  placer  application  at  the  out- 
start,  so  as  to  avoid  subsequent  Departmental  in- 
quiry.—26  L.  D.  573-,  27  Id.  676.  And  where  the  ap- 
plication is  by  the  lode  claimant  over  a  prior  placer 
patent,  the  safe  course  is  for  the  placer  to  adverse  if 
the  facts  exist  upon  which  to  contest  the  title  of  the 
lode  claimant. 

Proof  of  Known  Lode  by  Contiguity. 

Running  a  lode  survey  over  placer  lines  raises 
no  inference  that  the  vein  enters  within  them. — 
Raunheim  v.  Dahl,  9  Pac.  892;  132  U.  S.  260;  26.  L.  D. 
622.  Nor  is  it  sufficient  that  quite  a  number  of 
shafts  sunk  elsewhere  in  the  district  disclosed  hori- 


PLACER  CONTAINING  LODE!  207 

zontal  deposits  which  might  be  parts  of  a  vein  of 
continuous  extension  through  all  that  territory. — 
Sullivan  v.  Iron  Silver  Co.  143  U.  8.  431.  Nor  does 
the  granting  of  a  patent  subsequent  to  the  placer 
patent  over  the  placer  ground  raise  any  conclusive 
presumption.  The  question  in  such  case  is  then  an 
extrinsic  issue  dependent  on  proof. — Iron  Silver  Co. 
v.  Camp-bell,  16  M.  R.  218;  25  L.  D.  460. 

Locating  Lode  Within  Placer. 

The  placer  owner,  or  a  stranger  with  his.  con- 
sent, may  locate  a  lode  claim  within  the  placer  su-r- 
vey.— McCarthy  v.  Speed,  77  N.  W.  590.  And  doubt- 
less the  discoverers  without  such  owner's  consent 
by  peaceable  entry  may  make  such  location. — 
1  Lindley,  §  413. 

But  in  Colorado  the  sweeping  decision,  STEELE  J. 
dissenting  has  been  made  that  the  placer  location 
holds  all  lodes  not  known  to  exist  at  the  time  of  the 
location.  That  no  prospector  can  enter  to  search 
for  them  and  that  if  he  does  so  enter  and  discover 
a  lode  he  cannot  locate  it  because  his  location  was 
initiated  by  trespass. — Clipper  Co.  v.  Eli  Co.  68  Pac. 
286. 

This  practically  gives  all  lodes  to  the  placer 
.owner  and  clearly  defeats  the  intent  of  *the  Act  of 
Congress.  The  question  seems  to  us  more  analogous 
to  the  case  where  one  owns  the  surface  and  another 
the  minerals,  in  which  instance  it  is  universally 
held  that  the  surface  may  be  entered  upon  and  used 
to  the  full  extent  necessary  to  find  and  win  the 
mineral  values. 

Width  of  Such  Lode  Claim. 

Where  the  location  of  the  lode  is  made  within 
the  bounds  of  the  placer  location,  and  after  the  date 
of  the  placer  location,  it  has  been  held  that  the  lode 
claimant  is  restricted  to  fifty  feet  in  width. — Mt. 
Rosa  Co.  v.  Palmer,  56  Pac.  176.  But  where  the  lode 
was  not  only  known  to  exist,  but  was  a  valid  loca- 
tion prior  to  a  placer  location,  the  lode  is  entitled 


208  TAILINGS. 

to  its  full  width  as  staked,  against  the  placer  locator 
or  patentee. — Noyes  v.  Mantle,  15  M.  R.  611.  See  28 
L.  D.  41. 


TAILINGS. 


Each  Claim  Must  Take  Care  of  Its  Own. 

M.  A.  S.  Sec.  3144. — In  no  case  shall  any  person  or 
persons  be  allowed  to  flood  the  property  of  another  person 
with  water,  or  wash  down  the  tailings  of  his  or  their  sluice 
upon  the  claim  or  property  of  other  persons,  but  it  shall 
be  the  duty  of  every  miner  to  take  care  of  his  own  tailings, 
upon  his  own  property,  or  become  responsible  for  all  dam- 
ages that  may  arise  therefrom. — Sec.  9,  Nov.  1,  1861. 

The  Relation  of  One  Claim    to    Another    where 

both  are  situate  in  the  same  gulch  or  on  the 
same  waterflow  was  sought  to  be  regulated  by  the 
above  section  passed  at  an  early  date  which  fixed  in 
terms  a  matter  of  long  continued  dispute  in  Cali- 
fornia. The  tendency  of  the  later  decisions  is  to 
the  effect  that  the  upper  claim  cannot  justify  cover- 
ing up  the  lower  claim  on  the  plea  of  either  custom, 
priority  or  necessity. — Lincoln  v.  Roclgers,  14  M.  R. 
79;  Fitzpatrick  v.  Montgomery,  50  Pac.  416. 

Upper  and  Lower  Claim  in  Same  Gulch. 

Notwithstanding  the  above  Act  or  similar  local 
legislation  elsewhere,  the  natural  invitation  of  the 
stream  to  utilize  its  current  is  a  temptation  too  po- 
tent to  be  resisted.  No  placer,  barring  exceptional 
instances,  can  be  conveniently  worked  without  en- 
croaching more  or  less  upon  the  claims  below.  This 
leads  on  the  one  side  to  trespass,  on  the  other  side 
to  concessions,  and  their  relations  thus  become  in- 
volved with  questions  of  license,  contract  and 
estoppel. 

The  legal  right  of  the  claim  to  be  exclusively 
enjoyed  by  its  own  occupant  is  plain  with  or  without 
the  aid  of  the  Statute,  subject  to  such  considerations 
as  courts  of  equity  will  give  to  the  hardship  of  deny- 


TAILINGS.  209 

ing  the  use  of  a  natural  outlet  to  a  claim  so  situate  to 
its  neighbors  on  the  stream  below  that  its  use  of 
the  stream  is  a  physical  necessity.  The  upper  claim 
is  therefore  not  denied  the  right  to  rush  its  tailings 
across  the  lower  claim  if  they  are  not  allowed  to 
lodge  upon  such  claim.  A  claim  staked  and  recorded 
below  for  dumping  purposes  would  also  forestall  the 
location  of  the  same  ground  for  mining  purposes, 
except  subject  to  the  prior  easement  of  the  right  to 
deposit  tailings. 

Slight  Injury  to  Lower  Claims. 

The  owner  is  not  liable  for  pollution  of  stream 
incidental  to  placer  mining,  or  to  washing  iron  ore. 
It  is  classed  among  non-actionable  injuries.  Nor 
will  such  use  of  the  stream  be  enjoined  even  if  an 
action  lies,  except  in  wilful  or  extreme  cases. — Clif- 
ton Co.  v.  Dye,  6  So.  192;  Hill  v.  King,  4  M.  R.  533; 
Atchison  v.  Peterson,  1  M.  R.  583. 

But  a,  material  injury  will  be  prevented  by  writ 
or  compensated  by  damages. — Columbus  Co.  v. 
Tucker,  26  N.  E.  630;  Tennessee  Co.  v.  Hamilton,  14 
So.  167;  Drake  v.  Lady  Ensley  Co.  Id.  749;  Hindson 
v.  Markle,  33  Atl.  74. 

A  Boom  Ditch  was  enjoined  in  Carson  v.  Hayes, 
65  Pac.  814,  and  hydraulics  in  York  v.  Davidson,  Id. 
819. 

Injunctive  Relief  Against  Deposit  of. 

Where  there  is  neither  license  nor  the  protection 
of  a  prior  location  for  tailing  purposes  and  the 
ground  below  has  been  taken  up  by  other  parties, 
the  statute  is  plain  that  the  upper  cannot  lawfully 
use  the  lower  claim  as  a  place  of  deposit. — Fuller  v. 
Sw>an  River  Co.  16  M.  R.  252.  To  do  so  would  be  an 
invasion  of  the  legal  rights  of  the  lower  claimant 
for  which  he  might  recover  damages,  but  it  does 
not  follow  that  in  every  case  the  courts  would  inter- 
fere to  restrain  the  upper  claimant  by  injunction. 

And  if  the  lower  claims  could  be  shown  to  have 
been  located  or  purchased  for  any  purpose  of  annoy- 
ance to  the  upper  claims,  the  want  of  equity  in  such 


210  TAILINGS. 

case  upon  an  application  for  injunction,  would  be 
manifest. — Edwards  v.  Allouez  Mining  Co.  7  M.  R. 
577.  Placer  company  enjoined  at  suit  of  water 
works  against  fouling  stream. — Travis  Co..  v.  Mills,  94 
Fed.  909. 

The  incidental  flow  of  mud  and  fine  tailings  not 
sufficient  to  accumulate  as  deposit,  but  affecting  only 
the  character  of  the  water  or  causing  but  slight  dam- 
age, if  an  injury  at  all,  is  not  such  as  to  be  inter- 
fered with  by  injunction. — Atchison  v.  Peterson,  1 
M.  R.  583;  U.  S.  v.  N.  Bloomfteld  Co.  53  Fed.  631. 

Property  In. 

Tailings  are  property  of  the  miner  who  made 
them,  so  long  as  retained  on  his  own  land  or  under 
his  control  and  not  abandoned. — Jones  v.  Jackson,  14 
M.  R.  72.  When  allowed  to  flow  upon  the  land  of 
another  he  becomes  entitled  to  them. — Id.  They 
belong  to  the  lessee  for  the  time  being — but  not 
after  he  has  ceased  acts  of  ownership. — Erwiris  App. 
16  M.  R.  91. 

Location  of  Dump  Ground. 

It  has  been  held  in  Jones  v.  Jackson,  14  M.  R.  72, 
that  a  reasonable  amount  of  ground  below  a  mining 
claim  proper,  may  be  located  as  a  dump  or  place  of 
deposit  for  tailings.  The  same  case  holds  that  mere 
posting  of  notice  would  not  be  sufficient  to  hold  such 
ground.  We  would  advise  as  strict  a  location,  in- 
cluding staking,  notice  and  record  as  should  be  made 
in  the  case  of  the  location  of  the  mining  or  ditch 
claim,  to  which  such  tailings  claim  may  be  appurte- 
nant. In  the  nature  of  things  the  boundaries  of  such 
a  claim  also  would  be  strictly  confined  to  the  abso- 
lute needs  of  the  upper  claim;  nor  do  we  consider 
that  such  located  easement  would  hold  indefinitely 
without  user.  It  is  a  claim  not  so  much  of  express 
right  as  of  necessity.  The  doctrine,  however,  that  an 
easement  may  be  created  on  public  land  is  distinctly 
held  in  the  above  case,  and  in  Lincoln  v.  Rodgers, 
supra;  O'Keiffe  v.  Cunningham,  9  M.  R.  451.  In  Miser 
v.  O'Shea,  62  Pac.  1$1,  such  right  is  expressly  denied. 


TAILINGS.  211 

Mill  Tailings. 

A  mill  owner,  though  the  prior  appropriator, 
has  no  right  to  flow  tailings  into  a  stream  when  at 
slight  cost  they  could  be  so  impounded  as  not  to 
materially  foul  the  water. — Suffolk  Go.  v.  San  Miguel 
Co.  48  Pac.  828.  A  mill  will  not  be  allowed  to  so  pol- 
lute the  water  as  to  render  it  unfit  for  use  by  prior 
irrigation  appropriators. — Montana  Co.  v.  Gehring, 
75  Fed.  385. 

The  rights  and  duties  of  two  mills  using  the 
same  water,  one  above  and  one  below,  are  fairly 
stated  in  Otaheite  Co.  v.  Dean,  102  Fed.  929. 

Location  "Upon  Deposits  of  Tailings. 

Vacant  land  upon  which  tailings  have  been  de- 
posited may  be  claimed  and  worked  the  same  as  land 
containing  natural  deposits,  and  trespass  maintained 
by  the  claimant  against  a  party  carrying  away  such 
tailings. — Rogers  v.  Cooney,  14  M.  R.  85. 

A  party  may  take  up  a  claim  for  mining  pur- 
poses which  has  been  and  still  is  used,  as  a  place 
of  deposit  for  tailings  by  another — but  in  such  case 
his  mining  right  would  be  subservient  to  the  prior 
right  of  deposit. — O'Keiffe  v.  Cunningham,  9  M.  R. 
451.  On  the  other  hand  the  right  to  dump  may  be 
lost  by  allowing  the  mining  claimant  to  hold  exclu- 
sive adverse  possession. — McLaughlin  v.  Del  Re,  16 
Pac.  881. 

The  Debris  Cases. 

On  the  plea  of  interference  with  navigable  wa- 
ters the  United  States  has,  on  the  San  Joaquin  and 
Sacramento  Rivers,  in  California,  prohibited  all  hy- 
draulic mining,  except  under  government  license  and 
regulation.  The  Act  of  1893  (27  St.  L.  507)  makes 
such  mining  a  misdemeanor  unless  carried  on  by 
Federal  supervision.  This  Act  and  the  decisions  un- 
der it  is  the  final  outcome  of  what  SAWYER  J.  can- 
didly calls  "a  suit  between  the  mining  counties  and 
valley  counties." — 18  Fed.  792.  There  are  obvious 
constitutional  points  arising  out  of  such  an  act,  but 


212  MILL  SITES. 

it  has  been  thus  far  sustained. — U.  S.  v.  N.  Bloom- 
field  Co.  81  Fed.  243;  88  Fed.  664. 

A  review  of  the  progress  of  this  struggle  is 
fairly  given  in  the  opinion  of  HAWLEY  J.  in  the  last 
citation. 

The  passage  of  this  act  and  the  reference  to  the 
opinion  in  88  Federal  Reporter,  renders  it  unneces- 
sary to  further  cite  the  numerous  cases  almost  uni- 
formly adverse  to  the  miner,  which  led  up  to  it. 
Some  of  them  were  so  harsh  as  to  suggest  that  judi- 
cial power  had  reached  its  limits. — 9th  Ed.  p.  182. 


MILL  SITES. 


Extent — How  Patented. 

R.  S.  Sec.  2337. — Where  non-mineral  land  not  con- 
tiguous to  the  vein  or  lode  is  used  or  occupied  by  the  pro- 
prietor of  such  vein  or  lode  for  mining  or  milling  purposes, 
such  non-adjacent  surface-ground  may  be  embraced  and  in- 
cluded in  an  application  for  a  patent  for  such  vein  or  lode, 
and  the  same  may  be  patented  therewith,  subject  to  the 
same  preliminary  requirements  as  to  survey  and  notice  as 
are  applicable  to  veins  or  lodes  ;  but  no  location  hereafter 
made  of  such  non-adjacent  land  shall  exceed  five  acres,  and 
payment  for  the  same  must  be  made  at  the  same  rate  as 
fixed  by  this  chapter  for  the  superficies  of  the  lode.  The 
owner  of  a  quartz-mill  or  reduction-works,  not  owning  a 
mine  in  connection  therewith,  may  also  receive  a  patent 
for  his  mill-site,  as  provided  in  this  section. — Sec.  15>  A.  C. 
May  10,  1872. 

Location  and  Record. 

Mill  sites  are  located  by  posting  notice  and  stak- 
ing by  a  substantial  post  or  stake  at  each  angle, 
which  ordinary  prudence  would  require  to  be  in- 
scribed with  the  name  of  the  mill  site  and  the  num- 
ber of  the  corner.  There  are  no  Congressional  regu- 
lations of  the  details  of  such  location,  but  their 
record  should  conform  to  the  requirement  applicable 
to  the  record  of  all  classes  of  claims,  to  wit,  that 
it  contain  a  sufficient  description  by  reference  to 
natural  objects  or  permanent  monuments;  which 


MILL  SITES.  213 

terms  of  the  statute  are  no  more  than  a  statement  of 
what  is  required  as  a  matter  of  course  without  such 
statute.  In  other  words,  where  any  record  whatso- 
ever is  essential  to  either  original  claim  or  convey- 
ance, it  must  contain  a  description  sufficient  to  iden- 
tify the  land  intended  to  be  described. 

In  Colorado  the  form  in  use  is  the  statutory 
wording  prescribed  for  all  cases  of  location  of  non- 
mineral  lands,  M.  A.  8.  §  3610. 

Post  location  notice  at  some  conspicuous  point 
on  the  claim,  in  substance  as  follows: 

LOCATION    NOTICE. 

I  claim  the  Corinne  mill  site  (600  feet  northeast  by  WO 
feet  southwest)  as  staked  on  this  ground.  Date  of  location 
Jan.  2,  1903.  THOMAS  W.  FITCH,  JR. 

And  make  record  in  the  proper  county  of  the 

LOCATION  CERTIFICATE  OF  MILL  SITE. 
TO   ALL    WHOM    THESE    PRESENTS    MAY    CONCERN  I       Know 

ye  that  I,  Thomas  W.  Fitch,  Jr.,  of  Pittsburgh,  County  of 
Allegheny,  Commonwealth  of  Pennsylvania,  do  hereby  de- 
clare and  publish  as  a  legal  notice  to  all  the  world  that  I 
have  a  valid  right  to  the  occupation,  possession  and  enjoy- 
ment of  all  and  singular  that  tract  or  parcel  of  land,  not 
exceeding  five  acres,  situate,  lying  and  being  in  Pioneer 
Mining  District,  in  the  County  of  Dolores,  in  the  State  of 
Colorado,  bounded  and  described  as  follows,  to  wit:  The 
Corinne  mill  site,  beginning  at  corner  No.  1,  from  which,  etc. 
(description  continued)  to  the  place  of  beginning. 

Together  with  all  and  singular  the  hereditaments  and 
appurtenances  thereunto  belonging  or  in  anywise  appertain- 
ing. 

Witness  my  hand  and  seal  this  27th  day  of  January, 
in  the  year  of  our  Lord  one  thousand  nine  hundred  and  three. 

THOMAS  W.  FITCH,  JR.     [SEAL.] 
For  form  of  acknowledgment  see  page  182. 

A  %name  is  not  essential  to  a  mill  site,  but  it  is 
convenient  and  preferable  to  style  it  by  a  name. 

Location  and  record  should  be  accompanied  or 
followed  by  substantial  occupancy  or  valid  improve- 
ments. The  digging  of  a  ditch  is  not  the  location  of 
a  mill  site.  "Land  is  appropriated  by  one  character 


214  MILL  SITES. 

of  acts,  water  by  another." — RoMnson  v.  Imperial 
Co.  10  M.  R.  377. 

By  the  IT.  S.  Law  They  Are  Limited  to  Five  Acres, 
but  by  the  district  regulations  were  sometimes  re- 
stricted to  much  less  extent. 

A  square  location  466.69x466.69  feet  contains  five 
acres. 

They  Cannot  Lawfully  Be  Located  on  Mineral 
land.— 8  L.  ~D.  195;  13  Id.  175.  And  if  so  located  may 
be  contested  by  proceedings  in  the  Land  Office. 
—5  L.  0.  51. 

And  a  mill  site  adjoining  the  end  line  of  a  lode 
claim  being  presumed  to  contain  the  extension  of 
the  vein,  will  be  considered  as  mineral  land,  and  its 
entry  as  a  mill  site  will  not  be  allowed;  if  a  mill 
site  abut  against  a  side  line,  the  same  presumption 
does  not  exist,  and  its  entry  may  be  permitted. — 7 
L.  0.  Jt. 

But  the  presumption  that  land  on  which  a  lode 
claim  end  line  abuts,  is  necessarily  mineral,  may 
be  rebutted  by  proof.— 7  L.  0.  179. 

A  mill  site  taken  upon  land  supposed  to  be  non- 
mineral  at  the  time  will  hold  against  a  lode  loca- 
tion made  later.  And  the  finding  of  ore  not  of  mer- 
chantable value  does  not  make  the  ground  mineral 
land.— Cleary  v.  SJciffich,  65  Pac.  59. 

In  Hartman  v.  Smith,  14  Pac.  648,  it  was  held 
that  a  mill  site  was  a  mining  claim  and  as  such  ex- 
cluded from  a  town  site  patent.  In  Cleary  v.  Skiffich, 
28  Colo.  367,  the  Court  says  "A  mill  site  is  a  mining 
location."  In  the  latter  case  the  expression  is  a  mere 
introductory  clause.  But  to  chance  the  exclusion 
from  a  town  site  patent  of  a  mill  site  claim  on  the 
forced  or  technical  meaning  of  one  word,  would  be 
to  assume  grave  risk.  Bona  fide  prior  location  for 
ranch  purposes  will  defeat  a  mill  site. — Hamburg  Co. 
v.  Stephenson,  17  Nev.  450. 

Two  Classes  of  Mill  Sites. 

The  latter  clause  of  §  2337  supra,  provides  for 
patenting  of  land  actually  occupied  by  a  mill,  but 


MILL  SITES.  215 

the  former  and  more  important  portion  of  the  sec- 
tion provides  a  means  of  procuring  surface  area  to 
cover  such  ground  as  may  be  used  in  any  manner 
incidental  to  the  mine. 

First  Class — Mill  Site  With  Lode. 

Congress  allows  to  each  lode  claimant  the  priv- 
ilege of  taking  up  five  acres  of  ground,  upon  the 
theory  that  such  additional  surface  is,  or  may  be, 
needed  either  incidentally  for  the  operation  of  the 
mine  (storage  room,  boarding  houses,  miners'  cab- 
ins, ore  houses,  etc.)  or  indirectly  by  a  mill,  patio, 
arastra,  or  other  works  for  treating  ore.  In  fact, 
any  largely  operated  mine  does  require  some  such 
space  if  not  more.  The  land  so  needed  is  strictly 
within  the  intent  of  the  law;  and  though  no  mill 
may  be  erected  or  contemplated,  such  area  of  surface 
is  styled  a  mill  site. 

The  land  taken  under  this  clause  must  be: 

1.  Non-mineral. 

2.  Non-contiguous  to   the  lode. 

3.  Used  or  occupied  by  the  owner  for  mining  or 
milling  purposes. — 13  L.  D.  175. 

1.  Non-Mineral. 

The  test  on  this  point,  following  analogous  rul- 
ings between  agricultural  and  mining  claims,  would 
be:  has  the  land  greater  value  for  its  mineral,  or  for 
surface  use  in  connection  with  the  mine? — 13  L.  D. 
86;  517. 

The  form  of  proof  of  such  non-mineral  character 
is  by  the  affidavits  of  disinterested  witnesses. 

2.  Non-Contiguous. 

The  object  of  this  requirement  is  to  prevent  the  ~ 
taking  of  an  increased  area  of  mining  claim  under 
the  pretext  of  mill  site  uses. 

3.  What  Is  Sufficient  Use. 

"The  building  on  the  land  of  a. pumping  plant  to 
carry  water  to  the  mine  is  a  sufficient  mining  use.— 
11  L.  D.  338.  Or  storing  water  on  the  same  for  the 
mine. — 13  Id.  175.  Use  for  storing  ores  or  for  tail- 


216  MILL,  SITES. 

ings,  shops  or  houses  for  workmen. — 5  Id.  192.     Or 
for  houses  for  workmen  on  the  mill. — 14  Id.  173. 

The  use  of  a  cabin  on  the  land  for  storing  tools 
was  held  sufficient  in  Hartman  v.  Smith,  14  Pac.  648. 
This  case  practically  decides  that  the  ordinary  use 
of  a  prospector's  cabin,  wherever  it  may  be  located, 
if  not  on  ground  contiguous  to  the  lode,  is  enough 
to  justify  the  claiming  of  the  site  of  the  same  as  a 
mill  site.  Cited  and  followed  in  Valcalda  v.  Silver 
Peak  Mines,  86  Fed.  90. 

Insufficient  Use. 

The  mill  site  section  cannot  be  availed  of  to  pat- 
ent water  rights  proper— £  L.  D.  106;  9  Id.  201;  12 
Id.  624. 

Or  for  the  benefit  of  a  third  party. — 11  Id.  561. 
The  benefit  must  be  to  the  particular  lode  in  ques- 
tion.—^ Id.  196. 

A  lode  owner  has  no  right  to  attach  to  his  pat- 
ent application,  at  the  request  of  a  third  party,  an 
independent  piece  of  ground  as  a  mill  site. — Ham- 
burg Co.  v.  Stephenson,  30  Pac.  1088. 

Land  for  its  timber  cannot  be  located  as  a  mill 
site,  though  the  timber  be  used  and  needed  at  the 
mine. — 7  L.  D.  557.  But  this  ruling  is  strained,  as 
timber  has  always  been  considered  as  a  mining  neces- 
sity, and  the  taking  of  it  for  such  purpose  clearly 
puts  the  land  to  a  mining  use. — Tartar  v.  Spring 
Creek  Co.  14  M.  R.  371;  Id.  388,  note  9. 

Second  Class — Mill  or  Reduction  Works. 

Under  this  class,  where  the  application  is  for 
the  mill  site  alone,  there  must  be  a  mill  or  reduc- 
tion works — incidental  uses  are  not  sufficient.  That 
the  site  contains  a  dam,  penstock  and  pipe  for  driv- 
ing works  at  neighboring  mines  will  not  answer. — 
9  L.  D.  460;  29  Id.  143.  And  patent  will  not  issue  to 
give  additional  ground  to  a  mill  site  already  pat- 
ented.— 12  Id.  75.  Nor  on  two  adjoining  mill  sites 
with  improvements  on  the  line  between  them. — 14  Id. 
11.  It  will  not  be  allowed  on  the  strength  of  carry- 
ing water  to  a  smelter  on  other  ground. — 5  Id.  190. 


MILL  SITES.  217 

Separate  Application  for  Mill  Site. 

It  has  been  ruled  that  where  a  lode  has  gone  to 
patent  the  owner  may  afterwards  by  separate  appli- 
cation obtain  a  patent  on  a  mill  site  used  in  connec- 
tion with  the  lode,  and  that  such  application  need 
not  show  an  actual  mill  on  the  ground.  Such  mill 
site  is  allowed  to  go  to  patent  on  the  theory  that 
every  lode  is  entitled  to  a  mill  site,  and  it  is  a  matter 
of  indifference  to  the  department  whether  the  owner 
applies  for  the  patent  on  lode  and  mill  site  together 
or  separately.— 22  L.  D.  496;  L.  0.  Reg.  62. 

The  $500  Improvements  on  the  Lode  are  sufficient 
to  enter  both  lode  and  mill  site,  if  the  mill  site  is 
used  or  occupied  by  the  applicant  for  mining  or  mill- 
ing purposes. — 8  L.  D.  195. 

Proof  of  Improvements. 

The  early  practice  of  the  Land  Office  was  to  pat- 
ent a  mill  site  when  applied  for  in  connection  with 
a  lode,  without  proof  of  either  use  or  improvements. 
This  practice  was  taken  advantage  of  to  patent  build- 
ing lots,  and  all  sorts  of  claims  as  mill  sites,  but 
the  department  now  requires  proof  not  only  that  it 
is  non-mineral  land,  but  that  it  is  used  for  milling 
purposes  or  in  connection  with  the  mine — instances 
of  such  use  being  above  given. 

This  proof  of  the  use  of  the  site  in  connection 
with  the  mine  is  by  affidavit  of  the  applicant  and  of 
two  disinterested  witnesses.  Intention  to  use  is  not 
sufficient.— !Jt  L.  D.  544. 

Adverse  and  Protest. 

When  a  mill  site  application  conflicts  with  a 
prior  claim  of  another  to  the  ground  for  like  pur- 
poses it  may  be  adversed;  or  it  may  adverse  or  be 
adversed  by  a  lode  or  placer. — 1  L.  D.  566;  Rev.  Ed. 
555.  Where  in  conflict  with  a  mineral  claim  it  may 
be  defeated  by  a  protest  and  proof  of  being  located 
on  mineral  land. — 4  L.  0.  3;  5  Id.  51.  But  see  0 
Id.  11. 


218  SEVERANCE. 


SEVERANCE. 


Separation  of  Surface  and  Mineral  Estate. 

The  ownership  of  the  minerals  may  be  vested  in 
one,  while  the  ownership  of  the  surface  is  in  an- 
other. This  severance  is  often  created  by  deed,  in 
which  case  it  amounts  practically  to  a  partition  on  a. 
horizontal  plane,  the  two  estates  being  entirely  sepa- 
rated, except  that  from  the  nature  of  the  case,  the 
surface  owner  can  usually  claim  the  right  of  support, 
while  the  mine  owner  can  claim  such  incidental  use 
of  the  surface  as  is  necessary  to  enable  him  to  win 
the  minerals. — Caldwell  v.  Fulton,  3  M.  R.  238;  Homer 
v.  Watson,  14  M.  R.  1;  Marvin  v.  Brewster  Go.  18 
M.  R.  40. 

When  minerals  are  so  severed  they  form  a  sepa- 
rate part  of  the  freehold  and  the  estate  is  not  a  mere 
easement. — Bonson  v.  Jones,  56  N.  W.  515;  Thompson 
v.  Mattern,  9  Atl.  70;  Plummer  v.  Hillside  Co.  104  Fed. 
208.  The  right  of  entry  on  surface  cannot  be  en- 
larged so  as  to  allow  the  erection  of  coke  ovens — and 
its  use  for  powder  house,  blacksmith  shop  and  supply 
stores  depends  upon  the  circumstances  of  the  case  as 
found  by  the  jury. — Williams  v.  Gibson,  16  M.  R.  243. 
The  mine  owner  may  erect  hoisting  plant. — Warden 
v.  Watson,  5  8.  W.  605. 

If  the  surface  owner  take  the  minerals  he  is  a 
trespasser. — Ashman  v.  Wigton,  12  Atl.  74. 

Where  there  has  been  a  severance  of  the  surface 
from  the  minerals  there  is  no  privity  between  the 
estates. — Hutchinson  v.  Kline,  49  Atl.  312;  and  their 
owners  are  not  tenants  in  common. — Virginia  Co.  v. 
Kelly,  24  8.  E.  1021. 

Mining  Under  Surface  Improvements. 

By  statute  in  Colorado  (M.  A.  S.  §  3139;  3159) 
the  mine  owner  is  bound  to  secure  the  owner  of  the 


SEVERANCE.  219 

surface  improvements  if  he  attempt  to  mine  under 
any  such  improvements.  Such  statutes  are  no  great 
departure  from  the  common  law  which  compels  each 
estate  to  be  enjoyed  with  proper  regard  to  the  rights 
of  the  sub-owner  or  superficial  owner  as  the  case 
may  be,  and  would  enjoin  mining  under  valuable 
improvements  if  irreparable  injury  were  threatened 
by  such  mining. 

A  miner  has  no  right  to  work  within  the  enclos- 
ure surrounding  a  dwelling  house,  corral  or  other  im- 
provements of  another. — Burdge  v.  Underwood,  4 
M.  R.  518. 

Instances  of  Severance. 

The  surface  and  the  subjacent  strata  are  rarely 
owned  by  separate  parties  on  the  western  slope  except 
where  placer  gold  or  lodes  have  been  discovered  in 
towns  before  entry  under  the  Town  Site  Acts;  or  in 
instances  where  conflicting  claims  have  been  com- 
promised by  deed,  one  party  taking  the  surface  and 
improvements,  the  other  the  veins  underneath. 

But  the  subject  is  important  in  the  Western 
States  chiefly  with  reference  to  the  question  of 
whether  claims  located  on  government  land  and 
claims  patented  by  the  government  take  both  surface 
and  minerals  in  all  cases,  or  whether  in  any  case 
there  is  an  actual  or  implied  severance  of  the  min- 
erals from  the*  surface,  either  from  the  nature  of  the 
claim  or  from  the  language  of  patents  confirming  the 
claim. 

Patented  Claims  Generally. 

As  to  patented  claims  it  has  been  the  policy  of 
the  government  to  grant  the  entire  estate,  and  retain 
no  interest  with  the  patentee.  It  has  been  so  held  in 
the  case  of  a  Mexican  grant  confirmed  by  patent,  al- 
though under  the  original  grant  the  claimant  had 
received  no  title  to  the  mines  of  gold  and  silver  from 
the  Mexican  government.  It  was  considered  that  the 
confirmatory  patent  of  the  United  States  conveyed 
the  soil,  and  everything  under  the  soil,  and  that  if 
the  government  had  intended  to  reserve  the  royal 


220  SEVERANCE. 

metals,  as  the  Mexican  Republic  had  done,  it  should 
have  been  so  expressly  stated  in  the  patent. — Moore  v. 
Smaw,  12  M.  R.  418. 

Patented  Lode  Claims. 

In  patents  to  lode  claims  both  surface  and  min- 
erals are  conveyed  in  terms. 

Patented  Placers. 

As  to  placer  claim  patents,  they  convey  not  only 
the  placer  deposits  and  the  surface,  but  also  all  veins 
except  those  known  to  exist  when  the  application  for 
patent  was  filed,  which  are  especially  excepted. 

Patented  Mill  Sites. 

As  to  mill  site  patents  it  is  required  that  such 
claims  be  located  on  non-mineral  land. 

But  aside  from  the  clause  referring  to  the  rights 
of  the  proprietors  of  lodes  dipping  underneath,  which 
is  common  to  all  classes  of  patents,  they  seem  to  be  a 
general  grant  of  the  land  which  they  enclose,  which 
grant  would  cover  all  lodes  and  mineral  rights. 

A  valid  lode  claim  overlying  the  ground  could 
have  protected  its  rights  by  an  adverse;  and  not  only 
do  the  general  rules  of  construction  favor  the  propo- 
sition that  a  mill  site  patent  conveys  all  lodes  and 
deposits  found  within  its  lines,  but  the  government 
having  undertaken  to  decide  the  mineral  or  non- 
mineral  character  of  the  ground  before  the  patent 
issues  and  thereupon  to  issue  an  absolute  grant,  such 
grant  carries  both  the  soil  and  what  is  under  the  soil. 
Or  if  the  grant  is  not  considered  absolute,  owing  to 
the  reservation  of  lodes  which  penetrate  the  lines  of 
the  mill  site  on  the  strike,  which  has  been  sometimes 
inserted,  such  reservation  is  one  forced  into  the  paper 
without  legal  authority,  and  is  therefore  void. — See 
Davis  v.  Weibbold,  139  U.  S..507;  Gale  v.  Best,  78 
Gal.  235. 

Patented  Agricultural  Claims. 

As  to  patented  agricultural  claims  obtained  in 
good  faith,  not  at  the  time  of  entry  known  to  be  min- 
eral land,  minerals  afterwards  discovered  certainly 


SEVERANCE.  221 

belong  to  the  patentee;  but  where  land  has  been  en- 
tered as  agricultural  upon  which  mineral  locations 
existed,  in  defiance  of  the  rights  of  mineral  claimants, 
such  patents  could  be  set  aside  as  against  the  mineral 
claimants,  and  it  was  Jield  in  the  case  of  Gold  Hill  Co. 
v.  Ish,  11  M.  R.  635,  that  such  a  patent  was  absolutely 
void  as  to  the  land  covered  by  the  mining  claim. 

A  patent,  however,  howsoever  procured,  usually 
operates  to  pass  title,  and  in  such  case  the  holder 
should  be  declared  a  trustee  for  the  use  of  the  owner 
of  the  mine.  See  page  135.  Salmon  v.  Symonds,  30 
Cal.  302. 

The  mineral  value  of  the  land,  to  defeat  an  agri- 
cultural entry,  must  be  substantial.  Abandoned 
works  are  not  enough. — U.  8.  v.  Blackburn,  48 
Pac.  904. 

Discovery  of  coal  after  entry  will  not  defeat  the 
issue  of  his  patent  to  a  homestead  claimant. — 21  L.  D. 
92;  Colo.  Co.  v.  U.  8.  123  U.  8.  308. 

Lodes  Dipping  Under  Patents. 

It  may  as  well  be  observed  under  this  head  that 
all  patents,  agricultural  as  well  as  mineral,  are  sup- 
posed to  contain  a  reservation  of  the  right  of  lodes 
apexing  outside  their  bounds,  to  dip  underneath  their 
lines.  See  page  164. 

School  Lands. 

Section  16  of  each  township,  if  non-mineral, 
since  the  organization  of  the  Federal  Government, 
and  in  later  years,  Section  36,  and  in  some  States  ad- 
ditional sections,  have  been  reserved  from  sale  and 
granted  to  the  respective  States  upon  their  admis- 
sion, such  sections  in  the  Territories  being  held  by 
the  government  by  an  implied  trust  to  that 
effect— 8  L.  D.  495.  The  words  of  grant  to  the 
several  States  are  not  uniform  but  in  general  the 
title  passes  upon  approval  of  the  survey. — 7  L.  D. 
459;  9  Id.  408;  Cooper  v.  Roberts,  18  How.*  113. 

In  the  meantime  before  State  admission  and  un- 
til survey  they  are  open  to  discovery  of  mineral  and 


222  SEVERANCE. 

location  of  mineral  claims  upon  them  the  same  as 
upon  the  rest  of  the  public  domain. 

When  the  mineral  character  of  such  reserved 
sections  was  known  before  survey  the  title  to  no 
part  of  the  same  passes  to  the  State,  and  claims  may 
be  located  upon  them. — 5  L.  0.  178;  Heydenfeldt  v. 
Daney  Go.  13  M.  R.  204;  Ivanhoe  Co.  v.  Keystone  Go. 
13  M.  R.  214. 

But  where  their  mineral  character  has  been  dis- 
covered since  they  were  surveyed,  such  subsequent 
discovery  of  mineral  will  not  divest  the  title  which 
has  already  passed.— 7  L.  D.  459;  9  Id.  408.  And  the 
States  have  control  of  their  sale  and  disposal.  Be- 
fore admission  as  a  State,  a  Territory  has  not  such 
control.—//  L.  D.  390. 

By  Act  of  Congress  approved  April  2,  1884  (Sup. 
p.  424},  Colorado  is  reimbursed  for  school  sections 
lost  to  the  state  by  reason  of  their  mineral  charac- 
ter, and  similar  Acts  apply  to  other  States.  Loca- 
tions may  be  made  on  indemnity  sections  until  ap- 
proval.—27  L.  I).  411;  29  L.  D.  181. 

Where  lands  are  mineral  at  date  of  the  reserva- 
tion they  do  not  pass  to  the  State  upon  the  subsequent 
abandonment  of  the  mines. — Hermocilla  v.  Hu'b'bell, 
26  Pac.  611. 

The  determination  of  non-mineral  character  by 
the  Land  Office  is  not  subject  to  collateral  attack. — 
Saunders  v.  La  Purisima  Go.  51  Pac.  656. 

In  Nevada  the  State  Lands  are  by  statute  open 
to  prospectors  and  the  State  Patent  does  not  pass 
mines  claimed  under  the  Act. — Stanley  v.  Mineral 
Union,  63  Pac.  59. 

Patented  Town  Sites. 

In  this  case  there  is  an  express  severance  of 
the  minerals.  The  holder  of  the  lot  takes  no  title 
to  any  located  claims.  The  lot  is  subject  to  entry 
to  get  the  mines  of  gold  or  silver  which  it  may  con- 
tain.—R.  S.  §  2386,  2392. 

These  sections  are  supplemented,  if  not  supplied 
by  an  Act  approved  March  3,  1891,  as  follows; 


SEVERANCE.  223 

Reservation  of  Mineral  Eights  From  Town  Sites. 

Sec.  16. — That  town-site,  entries  may  be  made  by 
incorporated  towns  and  cities  on  the  mineral  lands  of  the 
United  States,  but  no  title  shall  be  acquired  by  such  towns 
or  cities  to  any  vein  of  gold,  silver,  cinnabar,  copper,  or 
lead,  or  to  any  valid  mining  claim  or  possession  held  under 
existing  law. 

When  mineral  veins  are  possessed  within  the  limits  of 
an  incorporated  town  or  city,  and  such  possession  is  recog- 
nized by  local  authority  or  by  the  laws  of  the  United 
States, .the  title  to  town  lots  shall  be  subject  to  such  recog- 
nized possession  and  the  necessary  use  thereof  and  when 
entry  has  been  made  or  patent  issued  for  such  town  sites 
to  such  incorporated  town  or  city,  the  possessor  of  such 
mineral  vein  may  enter  and  receive  patent  for  such  mineral 
vein,  and  the  surface  ground  appertaining  thereto  : 

Provided,  That  no  entry  shall  be  made  by  such  mineral 
vein  claimant  for  surface  ground  where  the  owner  or  occu- 
pier of  the  surface  ground  shall  have  had  possession  of  the 
same  before  the  inception  of  the  title  of  the  mineral-vein 
applicant. — Sup.  p.  9^5. 

The  town  patent,  where  valid  mining  locations 
have  been  made  on  such  discoveries,  does  not  grant 
the  minerals. — Moyle  v.  Bullene,  44  Pac.  69;  26  L.  D. 
144;  ^9  L.  D.  89;  nor  where  the  land  was  known  to 
be  mineral  at  time  of  entry.— 29  L.  D.  426;  31  Id.  88. 
Under  the  terms  of  the  second  paragraph  of  the 
present  Act  it  seems  clear  that  lode  or  placer  pat- 
ents can  issue  for  such  claims  within  the  town  lim- 
its.— 25  L.  D.  518.  If  the  mine  was  located  after  the 
occupation  of  the  surface  by  the  lot  owner,  but  be- 
fore the  entry  of  the  town  site  for  patent,  the  mines 
and  surface  are  then  separate  estates,  each  to  be 
enjoyed  under  the  various  applications  of  the  maxim: 
sic  utere  tuo  ut  alienum  non  laedas. — Smoke  House 
Lode  Case,  12  Pac.  858;  King  v.  Thomas,  Id.  865;  Def- 
feback  v.  Hawke,  115  U.  8.  392. 

Under  the  various  reservations  in  favor  of  mines 
out  of  town  site  patents,  under  the  Acts  in  force 
before  1891,  it  has  been  decided  that  discovery  of 
mineral  after  the  patent  issues  is  of  no  avail. — Tomb- 
stone T.  8.  Cases,  15  Pac.  26;  Lamed  v.  Jenkins,  US 
Fed.  634.  That  a  location  not  valid  on  account  of  in- 
definite description  is  not  excluded. — Blackmore  v. 
Reilly,  11  Pac.  72.  Nor  a  location  without  a  discov- 


224  SEVERANCE. 

ery. — Regan  v.  Whittaker,  85  N.  W.  863.  That  only 
the  lode,  and  not  its  surface,  is  excepted,  at  least 
under  patents  prior  to  1872. — Dower  v.  Richards,  73 
Cal.  477.  That  the  mine  must  have  been  a  known, 
valuable  and  subsisting  claim. — Smith  v.  Hill,  26  Pac. 
644;  Davis  v.  Weibbold,  139  U.  8.  507.  In  the  last 
case  it  was  also  held  that  a  reservation  in  a  mining 
patent  in  favor  of  a  lot  claimant  was  a  nullity  be- 
cause unauthorized.  A  lode  once  profitably  worked 
and  then  abandoned  is  not  excepted,  though  after 
the  town  site  patent  issues  the  lode  is  found  to  be 
still  valuable. — Dower  v.  Richards,  151  U.  8.  658. 

The  rights  of  the  mine  owner  against  the  lot 
owner  may  be  lost  by  laches.  The  Probate  Judge's 
deed  covering  the  mining  ground  is  not  void,  but 
only  voidable. — Horsky  v.  Moran,  53  Pac.  1064- 

Doubtful  Policy  of  General  Reservations. 

Out  of  these  attempted  reservations  of  known 
lodes,  mines,  or  minerals,  by  general  terms  under 
the  Acts  providing  for  the  patenting  of  different 
classes  of  land,  only  trouble,  uncertainty  and  litiga- 
tion ensue;  the  holdings,  therefore,  are  usually 
strictly  against  them.  And  yet  the  fault  is  with  the 
government  attempting  to  protect  such  rights  by 
sweeping  clauses  instead  of  allowing  them  to  ad- 
verse or  to  come  in  as  co-applicants — the  mines  be- 
come abandoned  and  the  lot  owner  claims  the  whole 
estate,  or  they  become  of  sudden  value,  tempting  the 
miner  to  assert  more  than  his  rights.  The  same  ob- 
servations apply  with  greater  force  to  the  reserva- 
tion of  known  lodes  out  of  placers.  The  result  in 
either  case  is  that  the  surface  is  disposed  of,  while 
the  legal  title  to  the  minerals  remains  in  the  United 
States.  The  present  practice  is  to  allow  an  overlap- 
ping patent  to  the  mineral  claimant  under  certain 
conditions.— 25  L.  D.  518;  29  Id.  89;  426.  Before  the 
decision  in  the  South  Star  case,  cited  p.  205,  the  de- 
partment had  required  the  surface  patent  to  be  set 
aside  before  they  would  take  action. — Pike's  Peak 
Lode,  10  L.  D.  200;  Protector  Lode,  12  L.  D.  662. 


TUNNEL  SITES.  225 

Unpatented  Claims. 

A  lode  claim  covers  the  entire  surface  as  well 
as  the  veins  within  it.  Before  the  passage  of  the 
Mining  Acts,  it  had  been  held  (Brown  v.  49  Go.  9 
M.  R.  600)  that  a  lode  location  also  included  float 
gold  below  its  apex,  which  had  evidently  come  from 
that  particular  vein.  It  is  evident,  from  the  Con- 
gressional grant  of  the  surface  without  excepting 
any  form  of  deposit,  that  a  lode  location  made  in 
good  faith  upon  an  ore-producing  vein,  without  the 
aid  of  any  such  decision,  would  include  placer  de- 
posits within  its  lines  both  above  and  below  the 
vein. 

But  an  unpatented  placer  claim  covers  no  lodes, 
and  a  lode  claim  may  be  located  across  it.  An  un- 
patented mill  site,  town  site  or  ranch  claim,  does 
not  include  either  veins  or  deposits  of  gold  or  sil- 
ver. If  the  holder  of  such  claim  discover  mineral 
upon  it  he  should  stake  and  record  the  same,  as  a 
mining  claim,  and  he  has  the  same  right  as  a  stran- 
ger so  to  do,  if  he  be  the  first  to  disclose  such  min- 
eral value. — McCarthy  v.  Speed,  77  N.  W.  590. 

Where  land  has  been  returned  as  agricultural 
the  discovery  and  formal  location  of  a  lode  or  placer 
deposit  over  the  same,  shifts  the  presumption  to 
one  in  favor  of  the  mineral  claimant. — 21  L.  D.  502. 


TUNNEL  SITES. 


Line  of  Tunnel— Neglect  to  Work  for  Six  Months. 

R.  S.  Sec.  2323. — Where  a  tunnel  is  run  for  the  devel- 
opment of  a  vein  or  lode,  or  for  the  discovery  of  mines, 
the  owners  of  such  tunnel  shall  have  the  right  of  possession 
of  all  veins  or  lodes  within  three  thousand  feet  from  the 
face  of  such  tunnel  on  the  line  thereof,  not  previously 
known  to  exist,  discovered  in  such  tunnel,  to  the  same  ex- 
tent as  if  discovered  from  the  surface  ;  and  locations  on  the 
line  of  such  tunnel  of  veins  or  lodes  not  appearing  on  the 
surface,  made  by  other  parties  after  the  commencement  of 
the  tunnel,  and  while  the  same  is  being  prosecuted  with 

8 


226  TUNNEL  SITES. 

reasonable  diligence,  shall  be  invalid  ;  but  failure  to  pros- 
ecute the  work  on  the  tunnel  for  six  months  shall  be  con- 
sidered as  an  abandonment  of  the  right  to  all  undiscovered 
veins  on  the  line  of  such  tunnel. — Sec.  ^  A.  C.  May  10,  1872. 

Record. 

M.  A.  S.  Sec.  3140. — If  any  person  or  persons  shall 
locate  a  tunnel  claim  for  the  purpose  of  discovery,  he  shall 
record  the  same,  specifying  the  place  of  commencement  and 
termination  thereof,  with  the  names  of  the  parties  inter- 
ested therein. — Nov.  7,  1861. 

Line  of  Tunnel. 

Immediately  upon  the  passage  of  the  mining 
Act  of  1872,  containing  the  tunnel  section  above 
printed,  controversy  arose  as  to  what  was  meant  by 
the  words  "the  line  thereof." 

The  Land  Office  shortly  published  their  con- 
struction that  it  meant  "the  width  thereof  and  no 
more."  This  construction  was  adopted  in  the  case 
of  Corning  Tunnel  Co.  v.  Pell,  14  M.  R.  612.  This 
became  the  generally  received  interpretation  of  the 
act  until  the  case  of  Enterprise  Co.  v.  Rico  Aspen  Co. 
66  Fed.  200,  affirmed  by  the  National  Supreme  Court 
in  1897,  167  U.  S.  108\  followed  by  the  case  of  Camp- 
bell v.  Ellet,  167  U.  S.  116,  affirming  18  Colo.  511. 

The  court  holds  that  a  tunnel  duly  located  and 
its  work  diligently  prosecuted  holds  the  right  to  all 
lodes  not  previously  known  to  exist,  on  either  side 
of  the  bore.  That  is  to  say,  when  a  lode  is  reached 
the  tunnel  may  elect  to  take  1,500  feet  in  one  direc- 
tion or  1,500  feet  on  the  other  side  or  may  divide 
the  length,  so  much  on  either  side.  That  all  loca- 
tions on  lodes  not  previously  known,  made  within 
such  area  are  voidable  at  the  election  of  the  owner 
of  the  tunnel. 

Location  and  Record  of  Tunnel  Site. 

The  following  form  has  been  drawn  in  attempted 
compliance  with  the  Act  of  Congress,  the  Land  Of- 
fice regulations  and  the  construction  given  to  the 
act  by  the  Rico-Aspen  case. 

It  purports  to  claim  its  entire  frontage  of  3,000 
feet  as  its  line  of  tunnel,  and  if  the  Rico-Aspen  case 


TUNNEL,  SITES.  227 

stands  in  its  entirety,  the  claimant  is  in  position  to 
assert  his  full  rights  under  such  form.  But  the  Rico- 
Aspen  case  in  principle  cannot  be  reconciled  with  the 
Erhardt-Boaro  case,  15  M.  R.  472.  There  the  pros- 
pector by  his  notice  had  an  inchoate  right  to  his  lode 
just  discovered;  such  notice  not  specifying  the  ex- 
tent of  his  claim,  he  was  limited  in  his  right  of  selec- 
tion to  750  feet  on  each  side  of  his  point  of  discovery. 
This  discord  as  to  the  two  classes  of  claims  still 
existing,  we  advise  that  it  is  safer  fpr  the  tunnel 
claimant  to  elect  at  the  outstart  to  take  750  feet  on 
each  side,  or  some  other  definite  number  of  feet  on 
each  side,  of  the  bore  of  his  proposed  tunnel. 

LOCATION    CERTIFICATE    OF   TUNNEL. 
TO   ALL    WHOM   THESE    PRESENTS    MAY    CONCERN  :       KnOW 

ye,  that  I,  W.  E.  Renshaw,  a  citizen  of  the  United  States,  of 
Idaho  Springs,  County  of  Clear  Creek,  State  of  Colorado, 
do  hereby  declare  and  publish  as  a  legal  notice  to  all  the 
world  that  I  have  a  valid  right  to  the  occupancy,  possession 
and  enjoyment  of  THE  •HALL  TUN.NEL  AND  TUNNEL  SITE,  lo- 
cated January  22nd,  A.  D.  1903,  for  the  discovery  of  mines 
and  the  development  of  lodes,  and  situate  in  Griffith  Mining- 
District,  Clear  Creek  County,  State  of  Colorado,  described 
as  follows,  to  wit : 

Mouth  of  tunnel  situate  on  north  slope  of  Leavenworth 
mountain;  from  the  mouth  of  the  tunnel,  culvert  under  the 
middle  track  of  the  Georgetown,  Breckenridge  &  Leadville 
Railroad  bears  N.  17°  SS'  W.  32  feet;  corner  No.  6  survey  lot 
No.  4614-B.  Lion  mill  site  bears  N.  73°  Jf5'  W.  100.7  feet; 
Woodchuck  rock  bears  N.  50°  45'  E.;  Sherman  mountain  bears 
N.  72°  55'  W. 

Size  of  tunnel  8  feet  wide  by  7  feet  high  in  the  clear. 

Course  of  tunnel  from  its  mouth  S.  17°  38'  E.  3,000  feet 
to  the  south  end.  of  said  tunnel,  at  which  point  is  set  a 
substantial  stake,  being  the  end  stake,  and  between  tunnel 
mouth  and  end  stake  the  center  line  of  the  tunnel  is  marked 
at  500  feet,  1,200  feet,  1,900  feet  and  2,528  feet  from  the  mouth 
by  marked  stakes  or  blazed  and  marked  trees.  From  the 
end  stake  Republican  mountain  bears  N.  £0°  W.;  Saxon 
mountain  bears  N.  39°  40'  E.;  a  stump  9  inches  in  diameter 
marked  "B.  T.  &  H.  T."  bears  S.  86°  15'  W.  18.%  feet;  a  tree 
5  inches  in  diameter  marked  "H.  T.  &  B.  T."  bears  N.  43°  W. 
2  feet;  from  said  end  stake,  set  a  stake  N.  72°  22'  E.  1,500 
feet;  from  said  end  stake  set  a  stake  S.  72°  22'  W.  1,500  feet; 
from  mouth  of  tunnel  set  a  stake  N.  72°  22'  E.  1,500  feet; 
from  mouth  of  tunnel  set  a  stake  S.  72°  22'  W.  1,500  feet; 


228  TUNNEL  SITES. 

which  last  four  mentioned  stakes   are   at   the   exterior   cor- 
ners of  the  claim  of  said  tunnel  site. 

And  I  claim  for  line  of  tunnel  1,500  feet  on  each  side 
of  the  center  of  the  bore  or  course  of  the  tunnel,  and  the 
right  to  all  lodes  which  may  be  discovered  in  the  due  pros- 
ecution of  said  tunnel  within  1,500  feet  on  either  side  of  the 
center  of  said  line.* 

Together  with  all  and  singular  the  hereditaments  and 
appurtenances  thereunto  belonging  or  in  anywise  appertain- 
ing, and  all  rights  granted  to  the  locator  as  tunnel  rights 
under  the  terms  of  section  2323  of  the  Revised  Statutes  of 
the  United  States. 

Witness  my  hand  and  seal  this  22nd  day  of  January, 
A.  D.  1903. 

W.  E.  RENSHAW.     [SEAL] 

STATE  OF  COLORADO,  City  and  County  of  Denver:  ss. 

Before  me,  the  subscriber,  a  notary  public  in  and  for 
said  county,  personally  appeared  W.  E.  Renshaiv,  to  me  per- 
sonally known  to  be  the  same  person  described  in  and  who 
executed  the  within  declaration  of  occupation  and  acknowl- 
edged that  he  signed,  sealed  and  published  the  same  as  his 
free  and  voluntary  act  and  deed  for  the  uses  and  purposes 
therein  set  forth. 

Witness  my  hand  and  notariaf  seal  this  22nd  day  of 
January,  A.  D.  1903.  Joseph  K.  Bozard, 

[SEAL.]  Notary  Public. 

STATE  OF  COLORADO,  City  and  County  of  Denver:  ss. 

W.  E.  Renshaw,  of  the  County  of  Clear  Creek,  State  of 
Colorado,  being  first  duly  sworn  according  to  law  deposes 
and  says  :  That  he  is  a  citizen  of  the  United  States  over 
the  age  of  21  years  ;  that  he  is  the  owner  by  pre-emption, 
location  and  occupation  of  the  foregoing  tunnel  site,  the 
said  tunnel  being  prosecuted  for  the  development  of  lodes 
belonging  to  said  affiant ;  also  for  the  discovery  of  other 
lodes  ;  affiant  further  says  that  he  has  expended  in  actual 
work  and  improvements  on  said  tunnel  not  less  than  forty 
thousand  dollars,  and  that  said  tunnel  has  been  already  run 
the  distance  of  1,000  feet,  and  that  it  is  bona  fide  his  inten- 
tion to  prosecute  work  on  said  tunnel  so  located  and  de- 
scribed with  reasonable  diligence  for  the  purposes  therein 
set  forth.  W.  E.  RENSHAW. 

Subscribed  and  sworn  to  before  me  this  22nd  day  of 
January,  A.  D.  1903.  Joseph  K.  Bozard, 

[SEAL.]  Notary  Public. 

Before  recording  place  at  the  mouth  of  tunnel 
the 


TUNNEL,  SITES.  229 

LOCATION    NOTICE. 

The  Hall  Tunnel  and  Tunnel  Site,  located  this  Jan- 
uary 22nd,  1903,  by  W.  E.  Renshaw.  Course  S.  17°  38'  E. 
3,000  feet  to  end  post,  from  which  end  post  Republican 
mountain  bears  N.  40°  W.,  Saxon  mountain  bears  N.  39°  40' 
E.,  stump  9  inches  diameter  marked  "B.  T.  &  H.  T."  bears 
S.  86°  15'  W.  18.4  feet. 

Height  of  tunnel  7  feet,  width  8  feet. 

I  claim  all  lodes  to  be  discovered  in  this  tunnel  and 
not  previously  known  to  exist,  within  1,500  feet  on  each  side 
of  tunnel  as  staked  on  the  ground.* 

W.  E.  RENSHAW. 

DUMP    LOCATION. 

If  ground  for  a  dump  is  claimed,  add,  in  the  loca- 
tion certificate  after  the*: 

"I  also  claim  a  square  tract  of  land  125  feet  on  each 
side  of  the  mouth  of  tunnel  and  extending  250  feet  imme- 
diately below  the  mouth  of  the  tunnel,  as  staked  upon  the 
ground,  for  dumping  purposes." 

And  to  the  notice  after  the*  add: 
"Dump  250  feet  square  as  staked." 

The  actual  location,  of  course,  consists  in  setting 
the  stakes  as  called  for  in  such  notices,  and  in  the 
starting  of  the  tunnel  in  good  faith. 

Location  of  Lodes  Cut  in  a  Tunnel. 

They  should  be  staked  and  recorded  exactly  as 
in  the  case  of  lodes  discovered  at  the  surface,  except 
that  no  discovery  shaft  is  required — the  discovery  in 
the  tunnel  taking  its  place — and  the  location  stake 
or  notice  should  be  set  on  the  surface  at  a  point 
midway  between  side  lines  and  above  the  discovery 
in  the  tunnel.  Such  location  notice,  as  well  as  the 
location  certificate,  should  state  the  fact  that  the 
lode  was  discovered  in  the  tunnel  and  the  number 
of  feet  in  from  the  mouth.  In  fixing  the  surface 
line,  approximate  calculations  should  be  made  for 
the  dip.  In  Ellet  v.  Campbell,  18  Colo.  510,  affirmed 
167  U.  S.  116,  it  was  held  that  the  discovery  need  not 
be  followed  by  location;  but  the  U.  S.  Supreme  Court 
conceded  that  it  might  be  required  before  patent 
could  be  secured.  If  the  width  on  each  side  had  not 
been  previously  fixed  by  proper  form  of  tunnel  loca- 


230  TUNNEL  SITES. 

tion,  the  tunnel  discoverer  would  not  be  allowed,  in 
any  event,  more  than  a  reasonable  time  to  elect 
where  he  would  take  his  1,500  feet. 

In  Brewster  v.  Shoemaker,  63  Pac.  309,  the  lode 
was  cut  250  feet  below  the  surface  in  an  unrecorded 
cross-cut.  The  dip  was  calculated  to  the  surface 
and  discovery  notice  posted  on  the  center  line,  refer- 
ring to  the  discovery  in  the  tunnel  and  the  claim 
was  staked  and  recorded.  Held  that  the  location 
was  valid  and  that  no  proving  up  between  surface 
and  the  tunnel  was  required.  The  case  holds  also 
that  the  fact  that  the  tunnel  had  been  driven  across 
patented  ground  belonging  to  strangers  was  not  a 
point  which  could  be  raised  by  third  parties. 

The  Right  to  Penetrate  Tinder  Other  Lands. 

The  right  to  tunnel  has  been  exercised  since 
lode  mining  began  on  the  Pacific  slope.  Such  claims 
are  frequently  mentioned  in  the  district  rules  and 
were  recognized  by  Colorado  statute  as  early  as  1861. 

The  trespass  of  a  tunnel  cutting  through  country 
rock  across  a  claim  at  great  depth  is  not  of  that 
class  denominated  as  destructive  or  irreparable,  but 
it  opens  a  private  back  door  to  the  miner's  under- 
ground wealth. 

And  applying  the  theory  that  every  surface 
claimant  owns  to  the  center  of  the  earth,  no  man  has 
a  right  to  drive  a  tunnel  underneath  the  property 
of  another  without  his  license  or  consent. 

Such  right  was  constantly  exercised  without 
much  question  and  it  had  been  expressly  held  that 
it  might  be  asserted  under  district  rules. — Bliss  v. 
Kingdom,  15  M.  R.  239. 

But,  especially  since  the  sweeping  demands  of 
tunnel  sites  after  the  Rico-Aspen  decision,  compelled 
miners  in  self-protection  to  check  their  encroach- 
ments, any  implied  license  to  penetrate  under  pre- 
vious locations  or  patents  without  grant  or  permit 
has  been  expressly  denied.  The  decisions  to  this 
effect  have  been  uniform  and  they  have  been  followed 
by  the  National  Supreme  Court. — Richards  v.  Dower, 


TUNNEL  SITES'.  231 

64  Cal  62;  73  Cal.  477;  Amador  Co.  v.  Dewitt,  73 
Cal.  482;  Calhoun  Co.  v.  Ajax  Co.  182  U.  S.  499. 

A  party  has  no  right  to  tunnel  through  another's 
patented  ground  to  cut  a  vein  whose  apex  is  within 
his  own  patented  lines. — St.  Louis  Co.  v.  Montana 
Co.  113  Fed.  900. 

In  Cone  v.  Roxana  Co.  (HALLETT  J.,  MS.)  the 
Court  held  the  Colorado  Tunnel  Act  of  1897,  giving 
all  tunnels  the  right  to  pass  through  any  prior  loca- 
tions or  patents,  to  be  in  conflict  with  the  Stato  Con- 
stitution. 

Where  the  tunnel  has  already  been  driven 
through  the  claim,  it  seems  that  ejectment  is  the 
proper  remedy,  and  not  injunction. — Creede  Co.  v. 
Uintah  Co.  HALLETT,  J.  MS. 

Unrecorded  Tunnels. 

Any  party  running  a  tunnel  would  probably  hold 
the  tunnel  itself  (i,  e.  the  bore  as  far  as  actually 
run),  without  any  record  whatever  (8  L.  0.  11}. 
This  is  done  every  day  in  the  case  of  cross-cuts, 
which  are  simply  tunnels  on  a  small  scale.  But  to 
claim  any  rights  for  its  line  or  otherwise  under  the 
Act  of  Congress  it  should  be  staked  and  recorded. 

Of  course,  a  lode  discovered  in  a  tunnel,  after  the 
lode  has  been  duly  located  and  recorded  on  the  tunnel 
discovery  is  as  valid  upon  an  unrecorded  as  upon  a 
recorded  tunnel,  its  title  having  by  such  independent 
location  become  a  matter  wholly  apart  from  the  tun- 
nel location, 

Failure  to  Work. 

The  right  to  blind  lodes  is  conditioned  upon 
prosecuting  work  with  "reasonable  diligence."  In 
the  Rico  Aspen  case,  66  Fed.  206,  the  court  intimates 
that  this  clause  should  receive  a  strict  construction, 
and  that  prompt  and  energetic  prosecution  of  the 
work  should  be  required. 

Failure  to  work  for  six  months  deprives  the  Tun- 
nel Site  of  its  claim  to  blind  lodes,  but  does  not  affect 
its  right  to  continue  its  bore  through  claims  in  ad- 
vance of  it. — Fissure  Co.  v.  Old  Susan  Co.  63  Pac.  587. 


232  TUNNEL  SITES. 

Abandonment. 

A  tunnel  may,  like  any  other  kind  of  claim,  be 
abandoned;  but  neglect  to  work  does  not  operate  to 
effect  an  abandonment;  such  neglect  only  operates  to 
deprive  it  of  tunnel  rights  along  its  line. — Fissure  Co. 
v.  Old  Susan  Co.  63  Pac.  586.  The  fact  that  no  labor 
has  been  done  for  many  years  is  evidence  of  abandon- 
ment, but  not  conclusive.  As  before  stated  (page 
85)  abandonment  is  a  question  of  fact,  and  in  the 
case  of  tunnels  is  wholly  independent  of  the  annual 
labor. 

Patent — Adverse  Claim. 

There  is  no  provision  for  patenting  a  tunnel  site. 
Before  the  Rico  Aspen  case  it  was  held  that  it  could 
maintain  an  adverse  claim  for  the  protection  of  its 
line  and  Tunnel  rights. — 29L.  D.  235;  Back  v.  Sierra 
Co.  11  Pac.  83;  and  that  it  could  enjoin  patent  pro- 
ceedings on  a  lode  claim  until  it  should  be  demon- 
strated that  the  lode  would  not  be  cut  in  the  tunnel. 
But  all  these  rulings  were  prior  to  the  construction 
of  the  Tunnel  section  by  the  Court  of  last  resort,  and 
under  that  decision  it  is  held  that  a  tunnel  need  not 
adverse  any  application  for  patent  on  a  lode  in  ad- 
vance of  its  breast.  That  when  its  bore  penetrates 
under  the  patent  it  can  claim  the  ground  as  owner. 
(The  title  to  a  lode  so  patented  stands  in  a  class 
anomalous  under  this  decision  to  any  other  title 
known  to  the  common  law.)  As  to  lodes  already  cut 
in  the  tunnel,  at  the  time  of  the  application,  we  as- 
sume that  they  should  adverse.  It  is  hardly  possible 
to  imagine  that  the  court  could  hold  tunnel-cut  lodes 
to  be  exempt  from  what  is  required  of  all  others  in 
like  condition.  And  as  to  the  tunnel  adversing  to 
protect  its  easement  or  right  to  penetrate,  if  its  estate 
in  the  extralateral  lodes  not  yet  cut  is  saved  without 
adversing,  it  seems  self-evident  that  the  mere  ease- 
ment of  its  right  to  bore  is  protected. 

A  lode  located  on  a  tunnel  discovery  adverses, 
of  course,  on  its  own  merits  as  a  lode  location. 


TUNNEL,  SITES.  233 

Annual  Labor  by  Tunnel. 

Sec.  1. — That  section  two  thousand  three  hundred 
and  twenty-four  of  the  Revised  Statutes,  be,  and  the  same 
is  hereby,  amended  so  that  where  a  person  or  company  has 
or  may  run  a  tunnel  for  the  purposes  of  developing  a  lode 
or  lodes,  owned  by  said  person  or  company,  the  money  so 
expended  in  said  tunnel  shall  be  taken  and  considered  as 
expended  on  said  lode  or  lodes,  whether  located  prior  to 
or  since  the  passage  of  said  act ;  and  such  person  or  com- 
pany shall  not  be  required  to  perform  work  on  the  surface 
of  said  lode  or  lodes  in  order  to  hold  the  same  as  required 
by  said  act. — Feb.  11,  1875,  Sup.  p.  62. 

The  annual  labor  of  $100  on  each  claim  may  be 
performed  under  the  above  section  by  work  done  on  a 
tunnel,  cutting,  or  which  is  driven  to  cut,  such  claims. 
—5  L.  0.  5;  Id.  34;  17  L,  D.  190. 

The  Patent  Expenditures  of  $500  may  also  be 

made  on  such  tunnel. — 4  L.  0.  67.  A  party  may  pat- 
ent one  lode  on  the  line  of  his  tunnel  for  each  $500 
of  labor  spent  in  driving  the  tunnel. — 30  L.  D.  510. 

Tunnels  Over  3,000  Feet  Long. 

The  A.  C.  expressly  limits  the  claim  of  a  tunnel 
site  to  lodes  not  known  to  exist  "within  three  thou- 
sand feet  from  the  face  of  such  tunnel."  Attempts 
have  been  made  to  evade  this  provision  by  filing  rec- 
ords of  a  second  tunnel  to  begin  at  a  point  3,000  feet 
in  from  the  mouth  of  the  tunnel  projected  from  the 
surface;  i.  e.,  to  begin  at  the  end  of  the  first  3,000 
feet,  taking  3,000  feet  more  and  even  third  and  fourth 
extensions  have  been  so  recorded. 

We  regard  these  locations  as  absolutely  void. 
But  we  draw  the  distinction  between  the  right  of  a 
tunnel  to  undiscovered  lodes  and  its  right  to  bore 
through  the  mountain.  The  former  is  granted  by 
Act  of  Congress,  is  limited  by  its  terms  and  cannot 
be  enlarged.  The  latter,  the  right  to  bore,  is  a  mere 
easement,  exercised  under  district  rules  before  the 
Act,  and  there  is  no  limitation  on  the  claim  of  a  tun- 
nel to  drive  itself  through  the  public  domain  as  far 
as  its  owners  may  desire  to  penetrate. 

A  tunnel  in  its  record  therefore,  in  our  opinion, 
can  claim  a  right  of  way  to  drive  to  any  expressed 


234  TAXATION. 

number  of  feet,  but  it  cannot  claim  the  statutory 
tunnel  right  beyond  the  first  3,000  feet;  and  the  loca- 
tion of  a  second  tunnel  from  the  breast  of  the  first 
is  an  attempt  by  a  self-serving  Act  to  take  from  the 
prospector's  rights  in  the  ground  beyond  3,000  feet 
an  estate  which  the  Act  of  Congress  has  not  taken 
from  him. 


TAXATION. 


By  the  Colorado  Revenue  Act  of  1902,  mining 
claims  are  required  to  be  listed  by  the  name,  and 
number  of  Survey  Lot,  when  patented. 

Mines  are  divided  into  two  classes — producing 
and  non-producing.  A  gross  output  of  $5,000  places 
the  mine  in  the  first  class,  and  it  is  to  be  assessed  at 
one-fourth  of  its  gross  output.  If  the  net  output 
shows  a  profit  of  more  than  a  fourth,  such  net  out- 
put is  to  be  the  valuation.  Non-producing  mines  are 
to  be  assessed  like  other  real  estate,  at  their  sup- 
posed actual  value.  Special  provisions  are  made  for 
taxation  of  group  claims  and  tunnel  sites. 

The  owner  is  required  to  make  return  showing 
the  tonnage,  freight  and  mill  returns,  as  stated  in  de- 
tail in  the  Act. 

Possessory  Title  Taxable. 

The  estate  in  unpatented  mining  claims  Is  prop- 
erty subject  to  the  "right  of  taxation. — Forbes  v. 
Gracey,  14  M.  R.  183;  Seymour  v.  Fisher,  16  Colo.  188. 
Notwithstanding  the  above  declaration  of  taxable 
status  the  possessory  title  has  not,  as  a  rule,  espe- 
cially under  the  Territorial  organization,  been  as- 
sessed, though  taxes  have  always  been  levied  on  the 
surface  improvements  when  extensive. 

Patented  Claims,  or  those  entered  for  patent  are 
of  course  assessed  and  taxed  as  other  classes  of  real 
estate.  In  Nevada,  and  other  states,  attempts,  at- 
tended with  continued  litigation,  have  been  made  to 


LIENS.  23o 

tax  the  net  output.  Such  tax,  so  plausible  in  theory, 
is  unjust  and  grossly  unequal  after  conceding  the 
fact  that  absolutely  equal  taxation  cannot  be  realized 
upon  any  theory  of  assessment.  See  Mercur  Co.  v. 
Spry,  52  Pac.  382,  construing  the  Utah  law  of  this 
character.  Net  proceeds  of  coal  mines  held  taxable 
in  Montana. — Montana  Go.  v.  Livingston,  52  Pac. 
780. 

Special  Instances. 

A  mine  cannot  be  sold  for  tax  assessed  against 
improvements  not  found  on  the*  mining  ground.- — 
Knox  v.  Higby,  18  Pac.  381. 

Exemption  as  mining  claim  ceases  when  placer 
ground  is  laid  out  into  town  lots.  — Dyke  v.  Whyte, 
29  Pao.  128. 

Where  surface  arid  minerals  are  separately  owned 
they  may  be  separately  taxed. — Cons.  Coal  Co.  v. 
Baiter,  26  N.  E.  651;  Stuart  v.  Com.  23  8.  W.  367. 

The  number  of  the  Survey  Lot,  in  Colorado,  is  an 
essential  part  of  the  description  in  a  Tax  deed. — 
Hammon  v.  Nix,  104  Fed.  689. 


LIENS. 


How  Affected  by  Patent. 

R.  S.  Sec.  2332.—  *  *  *  Nothing  in  this  chap- 
ter shall  be  deemed  to  impair  any  lien  which  may  have  at- 
tached in  any  way  whatever  to  any  mining-claim  or  property 
thereto  attached  prior  to  the  issuance  of  a  patent. — Sec.  13, 
A.  C.  July  9,  1870. 

Patent,  although  relieving  claims  from  adverse 
rights,  does  not  relieve  from  liens  already  attached 
against  the  property.  On  the  other  hand,  the  pat- 
ented title  enures  to  the  benefit  of  the  lien  holder. — 
Butte  Co.  v.  Frank,  65  Pac.  1. 

Judgments  are  liens  for  the  period  limited  by 
statute  in  each  State,  usually  six  years,  the  time  run- 
ning either  from  the  date  of  judgment  or  the  date 
of  filing  the  transcript  in  the  Recorder's  office. 


236  MINERS'  LIEN. 

A  mortgage  may  be  so  drawn  as  to  secure  ex- 
penses of  mining  as  well  as  the  original  debt. — Char- 
ter Oak  Co.  v.  Stephens,  15  Pac.  253.  Under  an  ex- 
ceptional statute  a  miner's  lien  has  been  held  to  cut 
out  a  prior  mortgage  (Atlantic  Co.  v.  Ropes  Co.  77  N. 
W.  938),  but  as  a  general  rule  the  mortgage  takes 
precedence  of  all  debts  incurred  by  the  further  work- 
ing of  the  mine.  The  lien  of  neither  mortgage,  judg- 
ment nor  attachment,  prevents  the  operation  of  the 
mine  without  an  injunction  for  the  protection  of  the 
security — and  such'  injunction  will  be  granted  only 
in  exceptional  instances. — Vervalen  v.  Older,  10  .M. 
R.  540;  Chung  Kee  v.  Davidson,  36  Pac.  519.  Such 
liens  do  not  prevent  the  free  severance  and  sale  of 
the  ore. — Young  v.  Northern  Co.  10  M.  R.  596.  The 
debtor  can  continue  to  mine  after  sheriff's  sale,  dur- 
ing the  redemption  period. — Ward  v.  Carp  River  Co. 
15  N.  W.  889. 

By  Act  of  1894,  p.  50,  trust  deeds  in  Colorado 
must  run  to  the  "Public  Trustee,"  otherwise  they 
can  be  foreclosed  only  as  mortgages.  Whatever  form 
is  followed  the  Statute  allows  nine  months  for  re- 
demption. The  common  law  mortgage,  both  for  se- 
curity to  the  creditor  and  for  fairness  to  the  debtor, 
is  to  be  preferred  in  all  cases. 

A  mining  partner  in  certain  cases  seems  to  have 
a  lien  for  his  advances  in  excess  of  those  of  a  co- 
partner.— Duryea  v.  Burt,  11  M.  R.  395;  Beck  v. 
O'Connor,  53  Pac.  94;  Childers  v.  Neely,  34  8.  E.  828. 

See  MINERS'  LIEN;  EXAMINATION  OF  TITLE. 


MINERS'  LIEN. 


To  Whom  Allowed  by  Colorado  Act. 

Sec.  4. — The  provisions  of  this  Act  shall  apply  to 
all  persons  who  shall  do  work  or  shall  furnish  materials  or 
mining,  milling  or  other  machinery  or  other  fixtures,  as  pro- 
vided in  Section  1  of  this  Act,  for  the  working,  preservation, 
prospecting  or  development  of  any  mine,  lode  or  mining 
claim  or  deposit  yielding  metals  or  minerals  of  any  kind 


MINERS'  LIEN.  237 

or    for    the   working,    preservation    or    development    of    any 
such  mine,  lode  or  deposit,      *      *      *     — Acts  of  1899,  p.  266. 

Several  Claims  Worked  Together. 

Provided,  That  when  two  or  more  lodes,  mines  or 
deposits  owned  or  claimed  by  the  same  person  or  persons 
shall  be  worked  through  a  common  shaft,  tunnel,  incline, 
adit,  drift  or  other  excavation,  then  all  the  mines,  mining 
claims,  lodes,  deposits  and  tunnel  and  mill  sites  so  owned 
and  worked  or  developed  shall,  for  the  purpose  of  this  Act, 
be  deemed  one  mine ;  *  *  *  — Id. 

Mine  Worked  by  Lessees. 

Provided  further,  That  this  section  shall  not  be 
deemed  to  apply  to  the  owner,  or  owners  of  any  mine,  lode, 
deposit,  shaft,  tunnel,  incline  adit,  drift  or  other  excava- 
tion, who  shall  lease  the  same  in  small  blocks  of  ground 
in  areas,  whether  of  surface  or  beneath  the  surface,  not  to 
exceed  150  feet  in  length  by  the  width  of  the  claim  and  for 
a.  depth  of  150  feet  or  less  to  one  or  more  sets  of  lessees. — 
Id. 

Water  Rights  and  Easements  Included. 

Sec.  7. — Such  liens  shall  likewise  attach  to  rights  of 
water  and  rights  of  way  that  may  in  any  manner  pertain 
to  any  kind  of  property  hereinbefore  specified  and  to  which 
such  liens  attach.  *  *  *  — Id.  269. 

A  miner  whose  wages  or  contract  money  is  in 
default,  secures  a  lien  by  filing  with  the  County  Re- 
corder a  statement  substantially  as  follows: 

FORM   OF  LIEN   STATEMENT. 
KNOW    ALL    MEN    BY    THESE    PRESENTS  :         That     I,     Max 

Dagenais,  do  hereby  give  notice  of  my  intention  to  hold  and 
claim  a  lien  upon  the  Thomas  a'Kempis  Lode  Mining  Claim 
in  Ruby  Mining  District,  County  of  Gunnison,  State  of  Col- 
orado. 

Said  lien  is  claimed  for  work  and  labor  done  by  me 
upon  said  lode  (or  materials  furnished  ~by  me  to  said  lode 
for  the  working  and  development  of  the  same  and  used 
therein),  as  miner  for  days  pay,  at  the  special  instance  and 
request  of  J.  G.  Edwards,  one  of  the  owners  or  reputed 
owners  of  said  lode,  between  the  first  day  of  July,  A.  D. 
1901,  and  the  25th  day  of  December,  A.  D.  1902,  both  dates 
inclusive,  upon  the  following  abstract  of  indebtedness  : 

Total  amount  of  indebtedness   $742.00 

Total  amount  of  credits 441.00 


Balance  due  claimant $301.00 


.238  MINERS'  LIEN. 

That  the  owners  or  reputed  owners  of  said  lode  are 
John  L.  Routt  and  J.  G.  Edwards. 

Witness  my  hand  this  second  day  of  January,  A.  D. 
1903.  MAX  DAGENAIS, 

Claimant. 

STATE  OF  COLOKADO,  County  of  Gunnison:  ss. 

Before  me,  the  subscriber,  Chas.  E.  Whitfteld,  a  Notary 
Public  in  and  for  said  county,  personally  appeared  Max 
Dagenais,  who,  being  duly  sworn,  saith  that  the  foregoing 
statement  and  abstract  of  indebtedness,  and  the  matters  and 
things  therein  set  forth,  are  true  to  the  best  knowledge,  in- 
formation and  belief  of  affiant.  MAX  DAGENAIS. 

Sworn  and  subscribed  before  me  this  second  day  of 
January,  A.  D.  1903.  Chas.  E.  Whitfteld, 

[SEAL.]  Notary  Public. 

When  the  claimant  is  a  sub-contractor  or  em- 
ployed by  a  contractor,  strike  out 

"J.  G.  Edwards,  one  of  the  owners  or  reputed  owners 
of  said  lode," 

and  insert 

"at  the  special  instance  and  request  of  Daniel  Roberts,  a 
contractor  under  the  owners  of  said  lode." 

Sub-contractors  must  serve  a  copy  of  such  state- 
ment on  the  owner  or  his  agent,  at  or  before  the  time 
of  filing,  but  if  neither  the  owner  or  agent  can  be 
found  in  the  County,  an  affidavit  to  that  effect  shall 
be  filed  in  lieu  of  service. 

The  time  to  file  varies  from  one  to  three  months 
according  to  the  class  or  nature  of  the  claim. 

Special  provision  is  made  in  the  Act  for  instances 
where  the  names  of  the  owners  are  unknown. 

Six  Months  to  Sue. 

An  action  must  be  commenced  to  enforce  the 
lien  within  six  months  after  work  completed  or  the 
lien  is  lost. 

Where  mines  are  worked  as  a  group  the  whole 
are  considered  as  one  mine  for  lien  purposes. — Tre- 
dinnick  v.  Red  Cloud  Co.  13  Pac.  152. 

General  Statutory  Legislation. 

Miners'  or  mechanics'  liens  are  pure  creations  of 
statute,  but  are  allowed  by  specific  legislation  in  all 


MINERS'  LIEN.  239 

the  States  and  Territories.  They  uniformly  pre- 
scribe some  such  statement  or  notice  equivalent  to 
the  above  form,  but  the  statute  of  the  particular 
State  must  be  looked  to  for  details. 

Decisions. 

A  miner  has  no  lien  upon  the  ore.  For  rule 
of  distribution  where  work  has  been  performed  on 
various  parcels  of  group,  see  BassicJc  Co.  v.  School- 
field,  10  Colo.  46;  Malone  v.  Big  Flat  Go.  18  Pac.  772. . 
Lien  allowed  for  pumping  and  stoping. — Ghappius  v. 
Blankman,  60  Pac.  926. 

A  party  engaged  in  hauling  ore  from  the  mines 
to  the  quartz  mill  has  no  lien  on  the  mine. — Barnard 
'v.  McKenzie,  9  M.  R.  403. 

A  mining  foreman  or  superintendent  has  a  lien. 
— Palmer  v.  Uncas  Go>.  70  Gal.  614;  McLaren  v. 
Byrnes,  45  N.  W.  143.  See  Smallhouse  v.  Kentucky 
Go.  9  M.  R.  388;  Rara  Avis  Go.  v.  Bouscher,  9  Colo. 
385. 

An  expert  has  no  lien  for  making  report  on  a 
mine. — Lindemann  v.  Belden  Go.  65  Pac.  403. 

Lien  of  Surveyor  or  Civil  Engineer. 

M.  A.  S.  Sec.  2874.— The  provisions  of  this  act  shall 
apply  to  surveyors,  civil  and  mining  engineers  doing  any 
work  of  surveying  or  platting  of  any  mines,  mining  claims, 
lodes  or  mineral  deposits,  and  they  shall  have  like  lien  and 
claim  as  other  persons  under  the  provisions  of  this  act. — 
Sec.  8,  March  2,  1883. 

The  following  form  is  adapted  from  the  statute 
to  the  case  of  surveyor's  lien: 

FORM    OF    STATEMENT   FOR    SURVEYOR'S    LIEN. 
KNOW    ALL    MEN    BY    THESE    PRESENTS  :       That    I,    W.    H. 

Poicless,  do  hereby  give  notice  of  my  intention  to  hold  and 
claim  a  lien  upon  all  the  following  described  property,  to 
wit :  The  St.  Francis  de  Sales  lode  mining  claim,  in  Tarry 
All  Mining  District,  County  of  Park,  State  of  Colorado.  Said 
lien  is  claimed  for  work  and  labor  done  by  me  in  survey- 
ing and  platting  said  lode,  at  the  special  instance  and  request 
of  Thomas  Cornish,  the  owner  or  reputed  owner  of  said  lode, 
by  running  the  lines  of  the  same  for  United  States  patent, 
as  Survey  Lot  No.  383,  and  making  plat  of  the  same  for  the 
same  purpose  between  the  17th  day  of  March  and  the  second 


240  MINERS'  LIEN. 

day  of  April,  A.  D.   1903,  both  dates  inclusive,   upon   which 
work  accrued  the  following  abstract  of  indebtedness  : 

Whole  amount  of  debt $60.00 

Whole  amount  of  credit 20.00 


Balance  due  the  claimant $40.00 

Witness  my  hand  this  9th  day  of  April,  A.  D.  1903. 

W.  H.  POWLESS. 
Verify  as  on  page  238. 

To  claim  a  lien  the  surveyor  is  not  required  to 
be  a  U.  S.  Deputy;  and  an  underground  as  well  as 
a  surface  survey  is  protected.  No  lien  is  given  in 
terms  for  surveying  a  mill  site. 

Mine  Under  Lease. 

The  Colorado  Act  of  1895,  was  declared  inopera- 
tive to  hold  the  mine  for  debts  incurred  by  the  les- 
see.— Wilkins  v.  Abell,  58  Pac.  612;  but  in  1899  there 
was  passed  a  similar  Act  with  an  additional  section, 
which  renews  the  doubt  that  arose  under  the  former 
act.  There  are  no  reported  cases  under  the  present 
Act. 

This  section  (Sec.  5,  1899,  p.  267)  as  it  reads  is 
simply  unintelligible,  but  it  seems  to  suggest  an  in- 
timation to  hold  the  claim  for  work  done  "with  the 
knowledge  of  the  owner"  unless  a  certain  notice  is 
posted  on  the  mine,  which  may  be  in  form  as  follows: 

NOTICE. 

February  27,  1903. 

Notice  is  hereby  given  to  all  persons  performing  labor 
or  furnishing  skill,  materials,  machinery  or  other  fixtures, 
or  supplies  of  any  kind  to  or  on  the  Gen.  Gronje  mine,  upon 
which  this  notice  is  posted,  that  the  undersigned,  the  owner 
of  said  mine,  will  not  be  responsible  for  any  labor  per- 
formed on,  or  any  skill,  materials,  machinery,  fixtures  or 
supplies  of  any  kind  furnished  to  said  mine,  nor  shall  the 
interest  of  said  owner  be  subject  to  any  lien  for  the  same. 
And  all  persons  are  hereby  notified  that  the  said  mine  and 
premises  have  been  leased  to  F.  M.  Roberts. 

PAUL  KRUGER. 

The  title  is  never  bound  by  lien  for  work  done 
for  a  lessee  unless  by  Statute  expressly  so  provid- 
ing. The  Arizona  Statute  does  not  give  a  lien  in 
such  case. — Griffin  v.  Hurley,  65  Pac.  147. 


CONVEYANCE.  241 

By  Option  Holder. 

When  a  mine  is  worked  under  an  option  of  sale 
the  terms  of  such  contracts  vary  so  widely  that  no 
general  rule  can  be  safely  stated  as  to  when  liabil- 
ity attaches  against  the  fee  simple  title.  On  a  lease 
containing  covenants  for  special  work  with  privilege 
of  purchase  the  owner's  estate  has  been  held  liable 
in  Eaman  v.  Bashford,  37  Pac.  24;  Hines  v.  Miller, 
55  Pac.  401;  Colo.  I.  Wks.  v.  Taylor,  Id.  942;  Hendrie 
Co.  v.  Holy  Gross  Co.  68  Pac.  785.  To  the  contrary.— 
Maher  v.  Shull,  52  Pac.  1115;  Block  v.  Murray,  31 
Pac.  550;  Hadley  Co.  v.  Gumming  s,  64  Pac.  443;  Reese 
v.  Bald  Mt.  Co.  65  Pac.  578. 

The  employe  of  a  licensee  has  no  lien. — Jurgen- 
son  v.  Diller,  46  Pac.  610.  Nor  the  employe  of  the 
claimant  of  a  hostile  title. — Idaho  Co.  v.  Winchell, 
59  Pac.  533. 


CONVEYANCE  OF  MINING  PROPERTY. 


The  ordinary  printed  forms  of  deeds  are  usually 
sufficient  to  convey  mining  claims,  but  owing  to  the 
common  practice  of  employing  conveyancers  totally 
disconnected  with  the  legal  profession,  few  abstracts, 
when  the  deeds,  as  recorded  at  length,  are  examined 
from  the  memoranda  on  the  abstract,  can  show  an 
unbroken  line  of  perfect  conveyances. 

A  common  imposition  is  to  present  a  deed  in 
the  form  of  a  warranty  purporting  to  convey  "all 
the  right,  title  and  interest  of  the  party  of  the  first 
part,"  which  amounts  to  no  more  than  a  quit-claim; 
or  to  make  the  consideration  of  a  warranty  deed  nom- 
inal, which  has  the  same  practical  effect. 

WARRANTY  DEED  ON  PATENTED  CLAIM. 

THIS  INDENTURE,  made  this  tenth  day  of  January,  in 
the  year  of  our  Lord  one  thousand  nine  hundred  and  three, 
between  Henry  P.  Lowe,  of  the  City  and  County  of  Denver, 
State  of  Colorado,  party  of  the  first  part,  and  John  8.  Held, 
of  Juneau,  Territory  of  Alaska,  party  of  the  second  part : 


242  CONVEYANCE. 

Witnesseth,  that  the  said  party  of  the  first  part,  for 
and  in  consideration  of  the  sum  of  ten  thousand  dollars,  to 
him  in  hand  paid  by  the  said  party  of  the  second  part,  the 
receipt  whereof  is  hereby  acknowledged,  hath  granted,  bar- 
gained and  sold,  and  by  these  presents  doth  grant,  bargain, 
sell  and  convey  unto  the  said  party  of  the  second  part,  his 
heirs  and  assigns  : 

All  the  following  described  real  estate,  situate  in  Al- 
hambra  Mining  District,  County  of  Park,,  State  of  Colorado, 
to  wit : 

The  Fickle  Goddess  Lode  Mining  Claim,  known  as  Sur- 
vey Lot  No.  777,  being  1,500  feet  in  length  and  300  feet  in 
width,  situate  on  South  Mountain. 

Together  with  all  and  singular  the  mines,  minerals, 
lodes  and  veins  within  the  lines  of  said  claim,  and  their  dips 
and  spurs  and  all  dumps,  plant,  fixtures,  improvements, 
rights,  privileges  and  appurtenances  thereunto  in  anywise 
belonging. 

To  have  and  to  hold  the  lands,  tenements  and  heredita- 
ments hereby  conveyed  unto  the  said  party  of  the  second 
part,  his  heirs  and  assigns,  forever. 

And  the  said  party  of  the  first  part,  for  himself,  his 
heirs,  executors  and  administrators,  doth  hereby  covenant 
and  agree  with  the  said  party  of  the  second  part,  his  heirs 
and  assigns,  that  the  said  premises  and  every  part  thereof, 
are  free  and  clear  of  and  from  any  and  all  liens,  incum- 
brances,  trusts  and  taxes,  and  that  he,  the  said  party  of  the 
first  part,  his  heirs,  executors  and  administrators,  unto  the 
said  party  of  the  second  part,  his  heirs  and  assigns,  the 
said  premises  and  every  part  thereof,  against  himself,  his 
heirs  and  assigns,  and  every  other  person  lawfully  claiming 
or  to  claim  the  same  or  any  part  thereof,  SHALL  AND  WILL 
WARRANT  AND  FOREVER  DEFEND;  alioays  saving 
and  excepting  the  same  provisos,  reservations  and  limita- 
tions contained  in  the  patent  of  the  United  States  issued  for 
said  survey  lot. 

In  witness  whereof  the  said  party  of  the  first  part 
hath  hereunto  set  his  hand  and  seal. 

HENRY  P.  LOWE.     [SEAL.] 

STATE  OF  COLOKADO,,  City  and  County  of  Denver:  ss. 

I,  Joseph  K.  Bozard,  a  Notary  Public  in  and  for  said 
County,  do  hereby  certify  that  Henry  P.  Loive,  who  is  person- 
ally known  to  me  to  be  the  same  person  described  in  and 
who  executed  the  within  indenture,  personally  appeared  be- 
fore me  this  day  and  acknowledged  that  he  signed,  sealed 
and  delivered  the  said  indenture  as  his  free  and  voluntary 
act  and  deed  for  the  uses  and  purposes  therein  set  forth. 

Witness  my  hand  and  notarial  seal  this  tenth  day  of 
January,  A.  D.  1903.  Joseph  K.  Bozard, 

[SEAL.]  Notary  Public. 


CONVEYANCE.  243 

The  Date  of  Expiration  of  Commission  Is  Re- 
quired to  be  noted  on  all  acknowledgments  and  affi- 
davits taken  before  a  notary  public  under  Colorado 
Statute.— M.  A.  8.  §  8281. 

Warranty  of  Claim  Entered  for  Patent. 

Use  the  same  form  inserting  the  words  "to  be" 
before  "issued"  and  adding  the  words  "as  entered 
in  the  Land  Office"  after  the  words  "said  survey  lot" 
in  the  saving  clause  of  the  warranty.  * 

Warranty  of  Possessory  Claim. 

Use  the  same  form  as  for  "Patented  Claims," 
omitting  the  words  "Survey  Lot  No.  ,"  and  omit- 
ting the  clause  in  italics.  Instead  of  such  clause  in- 
sert "always  saving  and  excepting  the  United  States 
of  America." 

Special  Warranty. 

When  the  grantor  desires  to  warrant  his  own 
chain  of  title,  but  not  against  parties  claiming  under 
other  locations,  insert  before  the  words  "shall  and 
will  warrant,"  this  clause: 

"By,  through  or  under  the  said  party  of  the  first 
part,  or  his  grantors." 

QUIT-CLAIM  DEED. 

THIS  INDENTURE,  made  this  thirty-first  day  of  Janu- 
ary, in  the  year  of  our  Lord  one  thousand  nine  hundred  and 
three,  between  Thomas  J.  Maloney,  of  the  City  and  County  of 
Denver,  State  of  Colorado,  party  of  the  first  part,  and  W.  K. 
Lee,  of  the  County  of  £weetwatert  State  of  Wyoming,  party 
of  the  second  part : 

Witnesseth,  that  the  said  party  of  the  first  part,  for 
and  in  consideration  of  the  sum  of  one  thousand  dollars,  to 
him  in  hand  paid  by  the  said  party  of  the  second  part,  the 
receipt  whereof  is  hereby  acknowledged,  hath  remised,  re- 
leased and  quit-claimed,  and  by  these  presents  doth  remise, 
release  and  quit-claim  unto  the  said  party  of  the  second 
part,  his  heirs  and  assigns  : 

All  the  following  described  real  estate,  situate  in  The 
Consolidated  Ten  Mile  Mining  District,  County  of  Summit, 
State  of  Colorado,  to  wit : 

The  GRACE  CURRIER  lode  mining  claim,  Survey  Lot  No. 
666,  1,500  feet  in  length  and  150  feet  in  width,  located  on 
the  west  slope  of  £heep  Mountain. 


244  CONVEYANCE. 

Together  with  all  and  singular  the  lodes  and  veins 
within  the  lines  of  said  claim,  and  the  dips,  spurs,  mines, 
minerals,  dumps,  fixtures,  improvements,  rights,  privileges 
and  appurtenances  thereunto  in  any  wise  belonging. 

To  have  and  to  hold  the  lands,  tenements  and  heredi- 
taments hereby  conveyed  unto  the  said  party  of  the  second 
part,  his  heirs  and  assigns,  forever.  ' 

In  witness  whereof,  the  said  party  of  the  first  part 
hath  hereunto  set  his  hand  and  seal. 

THOMAS  J.  MALONEY.     [SEAL.] 

Acknowledge  as  on  page  2^2. 

A  Quit  Claim  Deed  is  commonly  used  where  the 
title  is  possessory,  and  where  the  title  is  clear  it 
passes  the  title  as  effectually  as  a  warranty.  But  the 
grantee  in  a  quit-claim  may  be  chargeable  with  no- 
tice of  equities  not  chargeable  to  a  purchaser  by  a 
general  or  special  warranty. — Hannan  v.  Seiden- 
topf,  86  N.  W.  45. 

Mining  Deeds. 

There  has  come  into  use  a  form  of  deed  called 
a  Mining  Deed,  the  blanks  for  which  vary.  They 
contain  after  the  space  left  for  description,  the  for- 
mula "Together  with  the  Dips,"  etc.,  substantially 
as  in  the  above  forms.  A  deed  to  a  mine  does  not 
differ  from  a  deed  to  other  real  property  in  the  same 
condition  of  title,  except  in  the  description,  and  the 
phrase  "Together  with,"  etc.,  which  is  really  part  of 
the  description.  Most  of  these  deeds  contain  in  their 
granting  clause  the  operative  words  of  a  warranty 
in  connection  with  the  operative  words  of  a  quit- 
claim— "grant,  bargain  and  sell,"  "remise,  release 
and  quit-claim." 

But  their  legal  effect  is  more  that  of  a  quit-claim 
than  that  of  a  warranty,  except  that  the  words  "grant, 
bargain,  sell  and  convey"  have  the  special  force  of 
passing  an  after  acquired  title,  and  by  legislation  the 
word  "grant"  in  some  States  is  made  to  imply  a  war- 
ranty against  incumbrances.  In  examining  abstracts 
they  will  of  course  be  considered  as  transferring  the 
grantor's  interest,  but  no  lawyer  or  trained  convey- 
ancer would  advise  such  deed,  or  any  form  of  stat- 


CONVEYANCE.  245 

utory  deed  where  certain  words  are  declared  to  have 
a  certain  talismanic  charm,  in  preference  to  the 
known,  fixed  and  understood  grants  and  covenants 
of  a  common  law  warranty. 

Short  Form  of  Deed. 

By  Colorado  Act  of  1887  (Laws,  p.  226)  short 
forms  of  deeds  were  introduced. 

"The  implied  warranty  which  the  vendor  in  igno- 
rance of  its  nature  is  made  liable  for  by  this  stat- 
utory form,  is  totally  inapplicable  to  mining  claims 
whether  patented  or  possessory.  It  would  make  the 
vendor  liable,  if  liable  for  anything,  for  a  fee  simple 
title  even  to  making  good  the  exceptions  on  the  face 
of  the  patent.  If  used  in  conveying  a  possessory 
claim  there  is  a  breach  of  the  warranty  the  moment, 
the  instrument  is  delivered.  What  is  conveyed  by 
the  so-called  short  form  of  quit-claim  deed,  it  is  im- 
possible to  say.  The  entire  set  of  forms  should  be 
discarded." 

The  above  paragraph  is  the  language  used  about 
these  statutory  forms  of  deeds  in  the  sixth  edition  of 
this  book.  We  have  never  qualified  it  and  only  add 
that  the  Act  was  repealed  at  the  1889  session. 

Description. 

The  exact  description  of  a  located  lode  or  placer 

is  "The Lode  Mining  Claim"  or  "The 

Placer  Mining  Claim."  If  patented  add  the  words 
"Survey  Lot  No "  The  number  of  the  min- 
eral entry  is  superfluous,  and  to  describe  the  premises 
by  metes  and  bounds  is  not  good  conveyancing,except, 
of  course,  when  a'  fraction  of  a  claim  is  conveyed. 
The  name  is  usually  a  sufficient  description. — Smith 
v.  Sherman  Go.  31  Pac.  72;  Glacier  Go.  v.  Willis,  127 
U.  S.  472.  The  word  "mine"  is  a  dangerous  term  and 
to  be  avoided,  as  often  an  entire  group  of  claims  are 
known  collectively  by  the  name  of  one  mine,  and 
such  entire  group  might  pass,  and,  in  fact,  might  be 
intended  to  pass  by  the  use  of  such  sweeping  term. 
— Smith  v.  Sherman  Co.  31  Pac.  72.  The  word  "lode" 


246  CONVEYANCE. 

is  commonly  used  as  synonymous  with  lode  mining- 
claim. — Buckeye  Co.  v.  Carlson,  66  Pac.  168. 

Deed  Subdividing  Lode  Claim — Dip. 

Owing  to  the  relation  of  the  dip  to  the  strike, 
when  a  line  is  drawn  across  a  lode  claim  at  right 
angles  to  the  side  lines  at  the  surface,  such  line  be- 
ing intended  for  the  division  line  between  the  part 
retained  and  the  part  sold,  such  line  when  carried 
vertically  downward  may  cut  off  the  vein  on  its  dip 
in  such  a  way  as  to  divide  it  in  an  unexpected  man- 
ner. If,  for  instance,  at  the  surface,  it  begins  at 
the  "west  end  of  discovery  shaft,"  it  may  leave  the 
bottom  of  such  shaft  entirely  on  one  fraction  of  the 
lode  within  a  comparatively  few  feet  of  sinking. 
Such  result  or  a  similar  result  will  invariably  occur 
where  the  vein  has  a  dip,  unless  the  end  lines  are  at 
an  exact  right  angle  to  the  strike  of  the  vein. — See 
Plat,  p.  166. 

Apex  Eights  of  Irregular  Fraction. 

Where  the  whole  lode  is  conveyed  there  is  no 
doubt  that  the  deed  carries  the  right  to  follow  it  on 
the  dip  to  the  full  extent  the  grantor  may  have  had 
such  right.  The  same,  if  a  certain  number  of  feet 
off  either  end  of  the  claim  are  conveyed,  to  the  extent 
of  feet  granted. 

But  where  a  strip  or  irregular  fraction  of  the 
claim  is  carved  out  and  sold  the  question  of  the  apex 
rights  of  such  segregated  parcel  arises,  and  the 
tendency  of  the  decisions  is  that  the  grantee  has  the 
right  to  follow  on  the  dip  whatever  veins  may  apex 
on  the  ground.  Of  course  such  right  would  be  lim- 
ited by  the  end  lines  and  planes  projected  from  the 
end  lines  of  the  claim. 

In  Stinchfteld  v.  Gillis,  30  Pac.  839,  it  was  held 
that  all  veins  apexing  within  the  surface  area  are 
conveyed  although  carried  by  the  dip  into  other  land 
of  the  grantor. 

In  Montana  Co.  v.  St.  Louis  Co.  102  Fed.  430,  the 
Plaintiff  had  conveyed  a  strip  of  ground  to  Defend- 
ant, together  with  the  dips,  metals,  etc.,  in  the  usual 


CONVEYANCE.  247 

language  of  a  mining  deed.  The  deed  had  been  de- 
livered on  settlement  of  an  adverse  claim.  The  Court 
held  that  it  did  not  deprive  Plaintiff  of  his  right  to 
follow  a  vein  apexing  outside  the  strip,  upon  its  dip 
underneath  the  strip. 

In  Boston  Co.  v.  Montana  Co.  89  Fed.  529,  it  was 
held  that  the  grantee  could  follow  on  the  projection 
of  one  of  the  lines  of  the  pentagonal  tract  described, 
the  same  as  if  it  were  an  end  line  in  a  patent.  This 
gave  to  one  party  diverging,  and  to  the  other,  con- 
verging end  planes.  The  contention  that  each  party 
was  to  follow  as  much  of  the  vein  as  apexed  within 
his  own  territory  both  governed  by  parallel  end  line 
planes  always  seemed  to  us  the  more  just,  simple  and 
reasonable  rule  to  apply  to  this  class  of  cases. 

Since  the  above  paragraph  was  in  press  the  rule 
contended  for  has  been  adopted  by  the  Supreme  Court 
of  Montana,  and  the  ruling  in  the  Federal  case  disap- 
proved.— Montana  Co.  v.  Boston  Co.  70  Pdc.  1114. 

Cross  Lodes. 

The  Stinchfteld  case,  supra,  as  reported  in  40 
Pac.  98,  holds  that  the  grantor  cannot  claim  for  his 
vein  retained,  any  rights  as  a  cross  lode,  without 
special  reservation  to  that  effect. 

Same  Ground  Covered  by  Conflicting  Locations. 

The  owners  of  the  Edna,  after  record,  changed 
their  stakes  so  as  to  produce  a  conflict  with  the 
Lightning.  They  then  sold  the  Edna  by  the  recorded 
description  and  afterwards  bought  the  Lightning. 
Held  that  they  were  estopped  to  set  up  the  Lightning 
title  against  the  ground  in  conflict. — Shreve  v.  Copper 
Bell  M.  Co.  28  Pac.  315. 

Where  the  same  lode  or  ground  is  covered  by 
more  than  one  location  owned  by  the  same  grantor 
his  deed  of  one  may  be  construed  to  convey  the  title 
under  both  locations. — Weill  v.  Lucerne  Co.  3  M.  R. 
373;  Phillpotts  v.  Blasdel,  4  M.  R.  341;  Lebanon  Co.  v. 
Cons.  Rep.  Co.  6  Colo.  372;  Shoshone  Co.  v.  Rutter,  87 
Fed.  801.  For  construction  of  conveyance  in  general 
terms  after  portion  of  a  survey  lot  had  been  segre- 


248  CONVEYANCE. 

gated  by  judgment,  see  Mollie  Gibson  Co.  v.  Thatcher, 
57  Fed.  865. 

Severance  of  Mines  and  Surface  Reservation. 

Where  minerals  are  specially  granted  or  where 
surface  is  granted  without  the  minerals,  there  should 
be  special  covenants  for  support  of  the  soil  and  build- 
ings or  for  right  of  entry  to  get  at  the  minerals  re- 
served, as  the  case  may  be;  although  in  such  cases 
those  incidents  are  implied  to  the  extent  necessary  to 
enjoy  each  severed  estate.  See  p.  218. 

FORM   OF  RESERVATION. 

Insert  before  the  clause  "To  have  and  to  hold:" 
Always  saving,  excepting  and  reserving  unto  the  said 
party  of  the  first  part,  his  heirs  and  assigns,  all  mines  and 
minerals,  lodes,  veins  and  deposits  found  or  to  be  found 
under  or  within  the  lines  or  area  of  the  above  granted  prem- 
ises with  such  reasonable  use  of  the  surface  ground  as  may 
be  necessary  to  win,  work  and  carry  away  said  minerals 
so  excepted  "and  reserved. — Rogers  p.  880;  Bainbridge  p.  1^80. 

Witnesses. 

No  attesting  witnesses  are  required  to  a  deed  con- 
veying land  in  Colorado  or  the  other  States  or  Terri- 
tories of  the  Pacific  slope  excepting  Utah  and  Wyo- 
ming, which  require  one  attesting  witness,  and  Ore- 
gon which  requires  two.  A  deed  signed  with  the 
grantor's  mark -must  be  always  witnessed  on  general 
principles. 

Dower — Wife's  Signature. 

The  wife  is  not  required  to  join  in  the  husband's 
deed  nor  the  husband  in  the  wife's  deed  in  Colorado, 
Nevada,  North  or  South  Dakota,  or  Wyoming. 

In  all  those  States  where  the  right  of  dower  exists 
the  wife  must  of  course  join  in  the  husband's  deed,  in 
order  to  bar  her  right.  These  States  (and  the  Eastern 
States  generally)  are  Alaska,  Montana,  Oregon  and 
Utah.  In  Arizona  and  New  Mexico  it  is  questioned 
whether  the  right  of  dower  exists  under  the  A.  C. 
March  3,  1887.— 24  U.  8.  Stat.  638.  In  Arizona,  Cal- 
ifornia and  Washington,  in  a  conveyance  of  com- 
munity property,  the  wife  must  join  in  the  husband's 


CONVEYANCE.  249 

deed — and  in  the  two  latter  states  the  husband  must 
join  in  the  wife's  deed. 

The  widow  has  no  right  of  dower  in  a  mining 
claim  held  by  possessory  title. — Black  v.  Elkhorn  Co. 
163  U.  S.  445-  Otherwise  as  to  mines  owned  in  fee. — 
Whittaker  v.  Lindley,  3  8.  W.  9;  Stoughton  v.  Leigh, 
5  M.  R.  47. 

Husband's  Signature  Necessary. 

The  husband  is  required  to  join  in  the  wife's  deed 
in  Idaho,  New  Mexico,  Washington  and  Oregon.  In 
all  cases  where  the  husband  is  required  to  join  with 
the  wife,  or  the  wife  with  the  husband  in  any  convey- 
ance, it  is  assumed  that  a  separate  acknowledgment 
is  required  to  be  made  by  the  wife. 

Acknowledgments. 

An  acknowledgment  before  a  notary  public  is  cus- 
tomary and  valid  in  any  of  the  Pacific  States  or  Ter- 
ritories, though  the  land  lies  in  one  state  and  the 
acknowledgment  is  taken  in  another.  Where  the  deed 
conveys  land  in  another  State  a  commissioner  of 
deeds  for  such  State,  if  accessible,  is  always  author- 
ized to  take  the  acknowledgment.  When  taken  be- 
fore this  officer  no  certificate  of  his  official  character 
is  required. 

Other  officers  are  named  in  the  statutes  of  the 
several  States,  but  a  notary  public  within  the  State,  a 
commissioner  or  notary  without  the  State,  and  a  con- 
sul in  foreign  countries,  are  legalized  to  prove  deeds 
by  this  form  in  all  the  aforesaid  States  and  Territo- 
ries. 

For  Form  of  Acknowledgment  by  an  individual 
see  page  242.  The  following  are  correct  forms  in  the 
case  of  corporations  and  deeds  executed  under  Power 
of  Attorney: 

ACKNOWLEDGMENT  BY  CORPORATION. 

STATE  OF  COLORADO,  Hinsdale  County  :  ss. 

I,  William  L.  Siegmund,  a  Notary  Public  in  and  for 
said  County,  do  hereby  certify  that  John  E.  Searles,  Pres- 
ident of  the  Coldstream  Mining  Company,  who  is  personally 
known  to  me  to  be  such  President,  and  the  same  person  who 
as  such  President,  affixed  the  corporate  name  and  seal  of 


250  CONVEYANCE. 

said  Company  to  the  above  Indenture,  personally  appeared 
before  me  this  day  and  acknowledged  the  same  to  be  the 
free  and  voluntary  act  and  deed  of  the  said  corporation 
for  the  uses  and  purposes  therein  set  forth. 

Witness  my  hand  and  Notarial  Seal  this  third  day  of 
January,  A.  D.  1903.  Wm.  L.  Sieymund, 

[SEAL.]  Notary  Public. 

BY  ATTORNEY   IN  FACT. 

UNITED  STATES  OF  AMERICA,  DISTRICT  OF  COLORADO  :  ss. 

I,  Robert  Bailey,  Clerk  of  the  Circuit  Court  of  the 
United  States  in  said  District,  do  hereby  certify  that  E.  M. 
Titcomlj,  Attorney  in  Fact,  of  the  within  named  Arthur  B. 
Frenzel,  who  is  personally  known  to  me  to  be  such  Attorney 
in  Fact,  and  the  same  person  within  described  as  such  At- 
torney in  Fact,  and  who  affixed  the  name  and  seal  of  his 
said  principal  to  the  within  Indenture,  personally  appeared 
before  me  this  day  and  acknowledged  the  said  Indenture  to 
be  his  free  and  voluntary  act  and  deed  and  the  free  and  vol- 
untary act  and  deed  of  the  said  Arthur  B.  Frenzel  for  the 
uses  and  purposes  therein  set  forth. 

Witness  my  hand  and  the  Seal  of  said  Court,  this 
third  day  of  January,  A.  D.  1903.  Robert  Bailey, 

[SEAL.]  Clerk  of  Court. 

Stamps. 

By  the  Spanish  War  Revenue  Act  stamps  were  re- 
quired on  certain  deeds  between  July  1,  1898,  and 
July  1,  1902.— 30  Stat.  L.  460;  31  Stat.  L.  946;  A.  G. 
April  12,  1902. 

Agreements  for  Deed  are  usually  in  the  shape  of 
a  title  bond,  time  being  made  of  the  essence  of  the 
contract  in  every  form  in  use;  but  an  executory  con- 
tract in  any  other  form  under  seal,  is  of  equal  valid- 
ity.—M.  A.  S.  §  446-448.  A  title  bond  or  any  other 
paper  purporting  to  allow  an  option  to  purchase 
should  always  show  more  than  a  nominal  part  of  the 
consideration  as  paid  or  contain  some  express  cove- 
nant by  the  vendee,  to  make  some  payment  or  ex- 
penditure, as  for  instance  to  do  certain  specified 
work  upon  the  property — to  avoid  the  possibility  of 
its  being  held  void  for  want  of  mutuality. 

Naked  title  bonds  have  been  ruled  to  be  mere 
options,  and  therefore  without  consideration  and  re- 
vocable.— Smith  v.  Reynolds,  2  M.  R.  227;  Finerty  v. 
Fritz,  1  M.  R.  437;  Gordon  v.  Darnell,  2  M.  R.  220.  But 


i  CONVEYANCE.  251 

where  the  holder  of  the  bond  pays  a  part  of  the  con- 
sideration or  agrees  to  develop  the  property  or  in 
any  other  manner  gives  a  valuable  consideration  the 
agreement  is  valid  as  a  contract,  and  when  recorded 
binds  the  property. 

TITLE   BOND. 
KNOW    ALL    MEN    BY    THESE    PRESENTS,     That     I,     Dennis 

Sullivan,  of  the  City  and  County  of  Denver,  State  of  Colorado, 
am  held  and  firmly  bound  unto  David  F.  Day,  of  the  County 
of  Our  ay,  in  said  State,  in  the  penal  sum  of  forty  thousand 
dollars,  to  be  paid  to  the  said  David  F.  Day,  his  heirs,  execu- 
tors, administrators  or  assigns  ;  to  which  payment,  well  and 
truly  to  be  made,  /  do  bind  myself,  my  heirs,  executors  and 
administrators,  and  every  of  them,  jointly  and  severally 
firmly  by  these  presents. 

Witness  my  hand  and  seal,  this  fourth  day  of  May,  in 
the  year  of  our  Lord  one  thousand  nine  hundred  and  two. 

WHEREAS,,  The  above  bounden  obligor  hath  this  day 
sold  to  the  said  David  F.  Day  certain  real  estate  situate  in 
Battle  Mountain  Mining  District,  County  of  Eagle,  State  of 
Colorado,  to  wit :  The  Legality  Lode  Mining  Claim,  Survey 
Lot  No.  99,  containing  1,500  feet  in  length  by  300  feet  in 
width,  on  Battle  Mountain. 

Together  with  all  and  singular  the  lodes  and  veins 
within  the  lines  of  said  claim  (and  not  excepted  on  the 
official  plat)  and  all  mines,  minerals,  dumps,  plant,  fixtures, 
machinery,  tramways,  improvements,  rights,  privileges  and 
appurtenances  thereunto  in  anywise  belonging. 

For  the  sum  of  twenty  thousand  dollars  to  be  paid  to 
the  said  obligor,  his  executors,  administrators  or  assigns, 
or  deposited  to  his  credit  in  the  First  National  Bank,  Denver, 
Colorado,  on  or  before  the  tenth  day  of  May,  A.  D.  1903,  and 
for  the  further  consideration  that  said  obligee  shall,  before 
said  last  mentioned  date,  expend  the  sum  of  at  least  one 
thousand  dollars  in  the  actual  underground  development  of 
said  property. 

Now,  THEREFORE,  the  condition  of  the  above  obliga- 
tion is  such  that  if  the  above  bounden  obligor,  his  heirs  or 
assigns,  on  payment  or  deposit  of  the  said  sum  of  twenty 
thousand  dollars  in  manner  aforesaid,  and  expressly  within 
the  time  limited  as  aforesaid,  time  being  of  the  essence  of 
this  contract,  as  to  such  payment  or  deposit,  shall  make, 
execute,  acknowledge  and  deliver  at  his  own  cost  and 
charges,  good  and  sufficient  deed  or  deeds  of  general  war- 
ranty to  the  said  David  F.  Day,  his  heirs  and  assigns,  or  to 
such  person,  persons  or  company  as  he  shall  nominate,  con- 
veying said  premises  with  good  and  perfect  title,  free  from 
encumbrance,  then  this  obligation  to  be  void,  otherwise  to 
remain  in  full  force  and  virtue. 

DENNIS  SULLIVAN.     [SEAL.] 


252  CONVEYANCE. 

In  consideration  of  the  option  expressed  in  this  ob- 
ligation, I  agree  to  expend  the  sum  of  $1,000  therein  men- 
tioned in  the  actual  underground  development  of  the  above 
described  property  within  three  months  from  the  date  of 
this  Bond. 

Witness  my  hand  and  seal  this  fourth  day  of  May,  A.  D. 
1902.  DAVID  F.  DAY.  [SEAL.] 

Cross  propositions  do  not  make  a  sale. — Bow- 
man v.  Patrick,  36  Fed.  138.  Where  one  of  several 
parties  executes  a  mining  agreement  on  behalf  of 
all,  with  their  knowledge,  they  may  (in  instances) 
be  held  without  signing.— Rice  v.  Ege,  16  M.  R.  179. 

Time  Is  of  the  Essence  of  the  Contract  in  a  title 

bond  on  a  mine. — Presidio  Co.  v.  Bullis,  4  8. 
W.  860;  Idaho  Co.  v.  Union  Co.  47  Pac.  95.  Or  in 
suit  for  specific  performance. — Durant  v.  Comegys, 
28  Pac.  425.  And  in  mining  contracts  generally. — 
Waterman  v.  Banks,  144  U.  8.  394-  It  may  be  made 
so  either  from  the  nature  of  the  subject  matter  or 
the  contract  of  the  parties. — Settle  v.  Winters,  10 
Pac.  216. 

But  it  may  be  waived  verbally  or  by  allowing 
the  vendee  to  work  on  assurances  of  extension. — 
Mason  v.  Sieglitz,  44  Pac.  588;  Presidio  Co.  v.  Bullis, 
supra. 

WORKING  CONTRACT   SALE. 

For  and  in  consideration  of  the  sum  of  $500  to  me 
in  hand  paid  by  Orrin  F.  Place,  the  receipt  whereof  is  hereby 
acknowledged,  I,  Charles  H.  Morris,  do  hereby  agree  to  place 
said  Orrin  F.  Place  in  full  and  sole  possession  and  control 
of  the  Fair  Deceiver  Lode  Mining  Claim,  situate,  etc.,  with 
authority  to  work  and  prospect  the  same  as  he  sees  fit  for 
the  term  of  sixty  days  from  date,  provided  only,  that  such 
work  be  done  in  good  and  workmanlike  manner,  and  that 
any  ore  taken  out  shall  be  separated  and  left  on  the  dump, 
and  not  removed  during  the  lifetime  of  this  contract.  And 
at  any  time  within  said  period,  on  tender  to  me  of  the  fur- 
ther sum  of  $4,500,  I  agree  to  deliver  a  good  and  sufficient 
warranty  deed  to  the  said  Orrin  F.  Place,  his  heirs  and  as- 
signs, conveying  said  above  described  premises  absolutely  and 
clear  of  encumbrance. 

In  case  no  such  tender  is  made,  said  sum  of  $500  is 
to  be  treated  as  the  consideration  of  this  option  and  right 
of  testing  and  to  be  and  remain  my  property  as  liquidated 
damages.  i 


CONVEYANCE.  253 

In  case  my  title  is  found  defective  and  I  fail  to  make 
it  good  and  marketable  within  said  period,  I  agree  to  pay 
said  Orrin  F.  Place  the  cost  of  abstract  and  the  vendee's  at- 
torney's reasonable  charges  for  examination  of  title,  and 
to  refund  said  sum  of  $500. 

The  ore  taken  out  during  said  period  is  to  be  the  prop- 
erty of  the  party  who  remains  or  becomes  the  owner  at 
the  end  of  said  period  of  sixty  days. 

Time  is  of  the  essence  of  this  contract  in  all  particu- 
lars. 

Witness  my  hand  and  seal  this  10th  day  of  May,  A.  D. 
1902. 

CHARLES  H.  MORRIS.     [SEAL.] 

In  consideration  of  the  delivery  to  me  of  the  above 
option,  I  agree  to  expend  at  least  $500  in  work  upon  the 
above  described  property  within  the  lifetime  of  said  option. 

Witness  my  hand  and  seal  the  date  above  written. 

ORRIN  F.  PLACE.     [SEAL.] 

SALE    SUBJECT   TO    EXAMINATION   OF  TITLE. 

The  undersigned,  Sam  W.  Jones,,  of  Breckenridye, 
State  of  Colorado,  hath  agreed  to  sell  to  Frank  M.  Taylor, 
of  Denver,  in  said  State,  and  said  Frank  H.  Taylor  hath 
agreed  to  buy  of  and  from  said  Sam  W.  Jones  the  Corinne 
Rowland  Lode  Mining  Claim,  situate  in  Gregory  Mining  Dis- 
trict, Gilpin  County,  Colorado,  for  the  consideration  of  $18,- 
000  to  be  paid  within  six  months  from  date,  fee  simple  (or 
good  possessory)  title  to  be  delivered  and  warranted  clear  of 
liens.  Title  subject  to  approval  of  Chas.  C.  Post,  attor- 
ney for  purchaser.  Cost  of  deeds  to  be  paid  by  vendor ; 
of  examination  of  title  by  purchaser.  Vendor  to  deliver 
at  his  own  cost  certified  abstracts  of  title  within  ten  days 
to  said  attorney.  Deeds  to  pass  on  tender  of  the  sum 
above  mentioned  within  the  period  of  six  months  above  lim- 
ited. 

If  no  tender  is  made  wTithin  such  period  the  purchaser 
shall  be  in  default  unless  he  sh.ow  the  title  materially 
defective,  or  a  prior  breach  of  contract  by  vendor,  or  that 
material  misrepresentations  as  to  the  mine  or  mineral  have 
been  made  to  him  by  the  vendor  or  by  parties  in  the  inter- 
est of  the  vendor,  and  thereupon  either  party  may  proceed 
for  specific  performance  or  for  damages  or  both  or  other- 
wise as  he  may  be  advised. 

Witness  the  hands  and  seals  of  said  parties  this 
2/fth  day  of  April,  A.  D.  1902. 

SAM  W.  JONES.  [SEAL.] 

PRANK  M.  TAYLOR.     [SEAL.] 


254  CONVEYANCE. 

CONTRACT  TO    SELL  AND  TO  BUY. 

I,  Edward  0.  Wolcott,  vendor,  hereby  agree  to  sell  to 
Charles  8.  Thomas,  and  I,  Charles  8.  Thomas,  purchaser, 
agree  to  buy  of  said  Edivard  O.  Wolcott,  the  Dream  Placer 
Mining  Claim,  situate,  etc. 

The  agreed  consideration  of  said  sale  is  $1,000  cash 
in  hand  paid,  the  receipt  whereof  is  hereby  acknowledged  ; 
$3,000  to  be  paid  within  sixty  days  from  the  date  hereof, 
and  $6,000  within  ninety  days  from  such  date,  making  a 
total  consideration  of  $10,000. 

Said  vendor  within  ten  days  from  date  will  deliver 
to  purchaser,  or  his  attorney,  an  abstract  of  title  duly  cer- 
tified by  the  clerk  and  recorder  of  said  county,  or  by  some 
reputable  abstract  office,  together  with  all  the  original  title 
papers  which  are  in  his  possession  or  within  his  power  to 
produce. 

And  within  said  time  will  place  in  escrow  in  the 
First  National  Bank  of  Denver  a  good  and  sufficient  war- 
ranty deed  conveying  to  said  Charles  8.  Thomas,  or  such 
person  as  he  shall  nominate,  the  said  premises  clear  of  en- 
cumbrance, to  be  by  such  bank  held  in  escrow  until  final 
payment  be  made  under  this  contract  or  default  is  made 
under  the  same.  Deposit  in  said  bank  to  the  credit  of 
vendor  shall  be  equivalent  to  payment  of  any  of  said  in- 
stalments. 

Time  is  of  the  essence  of  this  contract  as  to  each 
and  every  instalment,  and  if  any  instalment  or  instalments 
be  not  paid  within  the  time  or  times  hereby  limited  there- 
for, all  previous  instalments  shall  be  and  remain  the  prop- 
erty of  said  vendor,  the  deed  in  escrow  shall  be  returned 
to  him  for  cancellation,  and  the  property  shall  remain  his 
own,  unaffected  and  unencumbered  by  this  contract.  But 
if  he  fail  to  deliver  abstract  within  said  period,  or  to  de- 
posit said  deed  in  escrow,  or  if  his  title  prove  encumbered 
or  otherwise  not  marketable,  vendee  may  recover  any  and 
all  instalments  paid,  or  may  sue  for  specific  performance 
and  for  a  perfect  title,  or  for  damages  or  otherwise  as  he 
may  be  advised. 

Witness  the  hands  and  seals  of  said  parties  this  tenth 
day  of  May,  A.  D.  1902. 

EDWARD  O.  WOLCOTT.      [SEAL.! 
CHARLES  S.  THOMAS.      [SEAL.] 

A  better  because  a  fairer  contract  than  the  last 
above  given,  is  a  sale  by  deed,  securing  the  unpaid 
instalments  by  note  and  mortgage. 

The  terms  of  sale  are  so  variant  and  the  tempta- 
tions to  evade  become  so  great  with  the  fluctuations 
in  value,  that  it  is  always  preferable  to  state  the 
bargain  fully  to  an  attorney  jointly  agreed  on  and 


CONVEYANCE.  255 

whose  compensation  is  not  made  contingent  on  the 
sale,  and  to  have  him  place  the  bargain  in  such  form 
as  will  express,  without  fiction  or  verbiage,  the  real 
intention  of  the  parties. 

Escrow. 

Where  a  title  bond  or  other  executory  contract 
is  delivered  it  is  usually  accompanied  by  a  deed  exe- 
cuted and  acknowledged  and  placed  in  escrow.  An 
escrow  amounts  to  a  deposit  with  a  third  party  of 
an  unrecorded  4eed  to  be  delivered  on  certain  con- 
ditions, the  title  bond  or  other  executory  contract 
being  actually  delivered  and  held  in  the  meantime. 
Such  escrow  is  usually  in  the  shape  of  a  deed  en- 
closed in  a  sealed  envelope  and  endorsed  as  follows: 

To  THOMAS  KEELEY,  CASHIER,,  FIRST  NATIONAL  BANK 
of  Denver:  You  are  authorized  to  deliver  the  within  deed 
to  Thomas  F.  Walsh,  his  agent,  or  order,  upon  payment  to 
me,  or  deposit  to  my  order,  of  the  sum  of  ten  thousand  dol- 
lars, on  or  before  the  first  day  of  January,  A.  D.  1903.  Mean- 
while you  will  hold  the  same  irrevocably.  If  payment  is 
not  made  on  or  before  said  date,  you  will  return  the  same 
to  me  for  cancellation. 

January  30,  1902.  LUTHER  M.  GODDARD. 

An  escrow  is  often  placed  on  deposit  without 
any  title  bond,  or  the  agreement  is  delivered  on  con- 
dition of  not  going  on  record,  the  vendor  objecting 
to  clouding  the  title  by  recording  executory  agree- 
ments which  will  perhaps  never  result  in  conveyance. 
Such  an  escrow  or  agreement  (not  recorded)  if  on 
good  consideration,  is  valid  in  all  respects,  except 
that  of  giving  the  purchaser  record  security. — Wol- 
cott  v.  Johns,  7  Colo.  App.  361. 

Unrecorded  Claim. 

An  incomplete  location  may  be  transferred  by 
parol  and  the  record  completed  by  the  purchaser. — 
Doe  v.  Waterloo  Co,  70  Fed.  456. 

Acknowledgments  to  Contracts. 

No  instrument  needs  acknowledgment  except 
such  as  is  intended  to  be  placed  of  record;  if  an  in- 
strument is  recorded  without  acknowledgment,  it 


256  CONVEYANCE. 

may  be  valid  as  notice,  but  the  original  must  be  pro- 
duced or  accounted  for  when  used  in  evidence — a 
certified  copy  is  not  evidence.  An  acknowledgment 
is  not  a  part  of  the  instrument,  but  supplies  a  mode 
of  proving  its  execution  without  witnesses  and  for 
obtaining  a  valid  copy  when  lost  or  mislaid. 

Fraudulent  Sale. 

Where  a  sale  has  been  induced  by  fraud  the  in- 
jured party  may  either  rescind  or  sue  for  damages. 
— Byard  v.  Holmes,  6  M.  R.  598;  Smith  v.  Bolles,  13 
M.  R.  159. 

If  he  do  neither,  but  continue  to  exercise  acts 
of  ownership  over  the  property  purchased,  he  may 
be  estopped  even  to  plead  the  false  representations 
to  an  action  on  the  contract. — Butler  u.  Rockwell, 
14  Colo.  126. 

Proof  is  admissible  that  defendant  had  attempted 
to  salt  the  same  mine  on  other  persons. — Mudsill 
Co.  v.  Watrous,  61  Fed.  163.  Sale  of  worthless  stock 
may  be  set  aside  on  like  principles  as  the  sale  of  the 
mine.— Ormsby  v..  Budd,  33  N.  W.  457.  False  repre- 
sentations made  by  officer  are  not  necessarily  charge- 
able to  the  company. — Watson  Co.  v.  James,  Id.  622. 
A  party  is  bound  where  he  assumes  to  know  and 
makes  assertions  accordingly. — Lehigh  Co.  v.  Barn- 
ford,  150  U.  8.  665. 

Assertions  of  value  are  as  a  rule  only  expres- 
sions of  opinion. — Id.  But  otherwise  as  to  state- 
ments that  the  lands;  sold  include  a  certain  ore  bed. 
—Chatham  Co.  v.  Moffatt,  16  M.  R.  103.  And  opin- 
ions and  promises  (false  averments  of  large  means 
and  extensive  operations  intended)  may  amount  to 
actual  fraud.— Rorer  Co.  v.  Trout,  83  Va.  397;  5  Am. 
St.  R.  285.  The  same  as  to  promises  never  intended 
to  be  performed. — Lawrence  v.  Gayetty,  78  Cal.  126. 

A  party  cannot  cover  up  a  fraud  by  using  his 
wife's  name. — Largey  v.  Bartlett,  44  Pac.  962. 


MINING  LEASE.  257 

The  parties  will  not  be  allowed  to  stand  by  and 
await  the  result  of  the  adventure  before  suit. — Blen 
v.  Bear  River  Co.  3  M.  R.  435. 

Delay  without  sufficient  excuse  bars  the  remedy. 
— Great  West  Co.  v.  Woodmas  Co.  l.'f  Colo.  90. 


MINING  LEASE. 


Written  or  Verbal. 

The  lease  if  for  more  than  one  year  must  be  in 
writing  to  avoid  the  Statute  of  Frauds.  (M.  A.  8. 
§  2021).  If  for  a  less  period  it  is  still  often  reduced 
to  writing  and  the  covenants  being  peculiar  cannot 
be  too  particularly  expressed.  The  actual  possession 
taken  by  the  lessee  being  notice  of  his  rights,  the 
lease  generally  is  neither  acknowledged  or  recorded. 

Set  Work. 

In  large  mines  worked  on  the  tribute  system, 
the  lease  is  usually  verbal  between  the  manager  and 
the  miner,  and  is  more  in  the  nature  of  a  contract 
of  hiring,  the  foreman  retaining  general  control  of 
the  work. 

Dead  Work. 

The  following  form  is  correct  to  the  extent  of 
the  usual  covenants,  but  there  are  often  special 
covenants  added  in  regard  to  "dead  work"  and  other 
matters.  Dead  work  is  a  term  of  the  popular  lan- 
guage and  means  sinking  shafts  and  running  drifts, 
adits  or  cross-cuts,  or  it  may  embrace  everything  ex- 
cept stoping  and  the  timbering  incidental  to  stoping. 
Its  meaning  being  so  general  it  should  not  be  used 
at  all  in  the  instrument  and  the  intention  should  be 
covered  by  more  exact  expressions. 

It  is  a  common  stipulation  to  require  no  royalty 
for  ore  extracted  in  sinking  or  in  driving  levels. 
Where  dead  work  is  to  be  paid  for,  care  should  be 
taken  to  express  whether  the  compensation  is  to 


258  MINING  LEASE. 

come  "out  of  the  first  mill  returns"  or  "out  of  the 
royalty."  In  the  latter  case  the  lessor  pays  for  all 
of  it.  In  the  former  he  pays  a  share  equivalent  to 
his  proportion  of  the  proceeds.  In  wording  this 
covenant  a  personal  liability  may  be  incurred  if  not 
properly  expressed. 

The  Royalty  Reserved  Necessarily  Varies,  20  or  25 
per  cent,  being  the  usual  amount,  and  5  and  75  per 
cent,  being  extreme  limits. 

FORM   OF   LODE   LEASE. 

THIS  INDENTURE,  made  this  -first  day  of  May,  in  the 
year  of  our  Lord  one  thousand  nine  hundred  and  two,  be- 
tween Charles  J.  Grist,  of  London,  England,  lessor,  and  A. 
B.  Minor,  of  Lincoln,  State  of  Nebraska,  lessee  or  tenant : 
Witnesseth,  that  the  said  lessor,  for  and  in  consideration 
of  the  royalties,  covenants  and  agreements  hereinafter  re- 
served, and  by  the  said  lessee  to  be  paid,  kept  and  performed 
hath  granted,  demised,  and  let  and  by  these  presents  doth 
grant,  demise  and  let  unto  the  said  lessee  all  the  following 
described  mine  and  mining  property,  situate  in  Four  Mile 
Mining  District,  County  of  Routt,  State  of  Colorado,  to  wit : 
The  Owl  Bird  Lode  Mining  Claim,  Survey  Lot  No.  172,  to- 
gether with  the  appurtenances. 

To  have  and  to  hold  unto  the  said  lessee,  for  the  term 
of  one  year  from  date  hereof,  expiring  at  noon  on  the  1st 
day  of  May,  1903,  unless  sooner  forfeited  or  determined 
through  the  violation  of  any  covenant  hereinafter  against 
the  said  tenant  reserved. 

And  in  consideration  of  such  demise,  the  said  lessee 
doth  covenant  and  agree  with  said  lessor  as  follows,  to  wit : 

1.  To   enter  upon   said  mine,   or  premises,   and  work 
the  same   mine   fashion,   in   manner   necessary   to   good   and 
economical  mining,  so  as  to  take  out  the  greatest  amount  of 
ore  possible,  with  due  regard  to  the  development  and  pres- 
ervation of  the  same  as  a  workable  mine,  and  to  the  special 
covenants   hereinafter  reserved. 

2.  To  work  and  mine  said  premises  as  aforesaid  stead- 
ily  and   continuously  from   the   date   of   this   lease   with   at 
least   two   persons    employed    underground,   for   at    least    20 
shifts  to  the  man  each  calendar  month. 

3.  To   well    and   sufficiently   timber   said   mine   at   all 
points  where  proper,   in  accordance  with  good  mining;  and 
to  repair  all   old  timbering  wherever  it  may   become  neces- 
sary. 

4.  To  allow  said  lessor  and  his  agents  from   time  to 
time,  to  enter  upon  and  into  all  parts  of  said  mine  for  pur- 
poses of  inspection. 


MINING  LEASE.  25'J 

5.  To  not  assign  this  lease  or  any  interest  thereun- 
der, and  to  not  sublet  the  said  premises  or  any  part  thereof, 
without  the  written  assent  of  said  lessor,  and  to  not  allow 
any  person  not  in  privity  with  the  parties  hereto,  to  take 
or   hold   possession   of   said   premises,    or   any   part   thereof, 
under  any  pretence  whatever. 

6.  To   occupy    and   hold    all    cross    or    parallel    lodes, 
spurs   or  mineral   deposits   of   any   kind   which  may   be   dis- 
covered  by   the   said    lessee,    or   any   person    under    him,    in 
any     manner,    by    working    within,     or     from     the     demised 
ground,    as    the    property    of   said    lessor   with   privilege    to 
said  lessee  of  working  the  same  as  parcel  of  said  demised 
premises. 

7.  To  keep  at  all  times  the  drifts,  shafts,  tunnels  and 
other  workings   thoroughly  drained  and  clear  of  loose  rock 
and  rubbish,  unless  prevented  by  extraordinary  mining  cas- 
ualty. 

8.  To   do  no   underhand   stoping,     and    to    make    all 
shafts  7  feet  long  by  4  feet  wide  in  the  clear,  and  all  drifts 
6  feet  high  by  4  feet  wide  in  the  clear. 

9.  To  pay  to  said  lessor  as   royalty  25   per   cent  of 
the  net  mill   returns   of  all   ore  to  be  extracted  from   said 
premises  by  delivery  of  such  ore  with  all  convenient  speed 
in  lots  as  mined  to  some  mill  or  regular  ore  buyer  in  Den- 
ver or  Pueblo,  and  leaving  with  such  mill  or  ore  buyer  the 
percentage    of    mill    returns    aforesaid    for    delivery    to   the 
lessor. 

10.  To  deliver  to  said  lessor  the  said  premises  with 
the  appurtenances,  and  all  improvements  in  good  order  and 
condition,  with  all  drifts,  shafts,  tunnels  and  other  passages 
thoroughly    clear    of   loose   rock   and   rubbish,    and   drained, 
and   the  mine  ready  for  immediate   continued  working    (ac- 
cidents not  arising  from  negligence  alone  excusing)   without 
demand  or  further  notice,  on  the  said  1st  day  of  May,  A.  D. 
1903,  at  noon,  or  at  any  time  previous,  upon  demand  for  for- 
feiture. 

11.  And  finally,  that  upon  violation  of  any  covenant 
or  covenants   hereinbefore  reserved,   the  term   of   this   lease 
shall,  at  the  option  of  the  said  lessor,  expire,  and  the  same 
and   said   premises,    with    the    appurtenances,    shall    become 
forfeit   to   said    lessor ;    and   said   lessor   or   his    agent   may 
thereupon,    after    demand    of   possession     in     writing     enter 
upon  said  premises  and  dispossess  all  persons  occupying  the 
same,   with   or  without  force   and   with    or   without  process 
of   law ;    or   at   the   option   of   said    lessor    the   said   tenant 
and  all  persons  found  in  occupation  may  be  proceeded  against 
as  guilty  of  unlawful  detainer. 

Each  and  every  clause  and  covenant  of  this  Indenture 
shall  extend  to  the  heirs,  executors,  administrators  and 
lawful  assigns  of  all  parties  hereto. 


L'HO  MINING  LEASE. 

lii  witness  whereof,  the  said  parties  have  hereunto 
set  their  hands  and  seals. 

CHARLES    J.    GRIST.     [SEAL.] 
A.  B.  MINOR.  [SEAL.] 

For  acknowledgment,  if  desired,  see  page  2Jf2. 

Special  Covenant  Against  Miner's  Liens. 

8  a.  To  promptly  pay  for  all  labor  and  supplies  to 
be  done  for,  or  furnished  to,  the  said  lessee  or  any  person 
or  persons  under  or  in  privity  with  him  upon  said  prem- 
ises, and  to  deliver  to  the  lessor  on  or  before  the  fifteenth 
day  of  each  calendar  month  during  the  term  of  this  lease, 
a  written  statement  showing  that  all  labor  and  supplies 
have  been  paid  for,  or  the  amount  due  and  owing  for  such, 
labor  and  supplies  ;  and  if  any  lien  be  filed  or  if  any  such 
report  shows  any  part  of  the  pay  roll,  or  other  mine  in- 
debtedness unpaid,  or  if  such  indebtedness  exist,  whether 
shown  by  such  report  or  otherwise,  the  lessor  may,  at  his 
election,  declare  a  forfeiture  of  this  lease  as  hereinafter 
provided. 

Covenant  to  Keep  Notice  Posted. 

To  at  all  times  keep  and  maintain  posted  on  said  prem- 
ises and  each  claim  thereof  a  notice  in  substance,  as  follows  : 

For  form  of  notice  see  page  240. 

On  low  grade  lodes  reservations  of  a  graded 
royalty  are  common.  In  such  case  discard  covenant 
9  above  printed  and  insert: 

Covenant  for  Graded  Royalty. 

9.  To  pay  to  said  lessor  as  royalty  10  per  cent,  of 
the  net  mill  returns  of  all  ore  to  be  extracted  from  said 
premises  running  30  ounces  of  silver  or  under  to  the  ton  ; 
20  per  cent,  on  ore  running  over  30  and  not  exceeding  50 
ounces  to  the  ton  ;  30  per  cent,  on  all  ore  running  over  50 
ounces — by  delivering  all  the  ore  in  lots  as  mined  to  some 
mill  or  to  some  regular  ore  buyer  in  Denver  or  Pueblo  and 
leaving  with  such  mill  or  ore  buyer  the  several  percentages 
of  mill  returns  as  aforesaid  for  delivery  to  the  lessor. 

Estimate  of  royalty  after  deducting  freight  and 
mill  charges  is  said  to  be  based  on  the  "net"  mill 
returns.  Where  the  royalty  is  much  graded  and 
made  dependent  on  the  amount  of  lead  or  copper 
as  well  as  silver  or  gold,  the  more  simple  form  is  to 
reserve  it  on  the  "price  per  ton"  paid  by  the  ore- 
buyer,  which  is  90  to  95  per  cent,  of  the  bullion  and 
base  metal  value,  after  deducting  treatment  charges; 


MINING  LEASK.  261 

but  in  the  "price  per  ton"  the  freight  has  not  been 
estimated. 

Royalty  on  Price  Per  Ton. 

9.  To  pay  to  said  lessor  as  royalty  10  per  cent,  of 
the  net  mill  returns  of  all  ore  sold  for  $10  per  ton  or  less, 
net  price  after  deducting  freight  and  mill  charges,  and  20 
per  cent,  of  the  like  net  mill  returns  of  all  ore  sold  for  more 
than  $20  per  ton  net  price  as  aforesaid  by  delivering  all 
the  ore  in  lots  as  mined  to  some  mill  or  to  some  regular 
ore  buyer  in  Denver  or  Pueblo,  and  leaving  with  such  mill 
or  ore  buyer  the  several  percentages  aforesaid  for  delivery 
to  the  lessor.  . 

The  mill  returns  on  which  settlements  between 
lessor  and  lessee  are  made  are  substantially  accord- 
ing to  the  following  form: 


262 


MINING  LEASE. 


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MINING  LEASE.  263 

Freight  is  paid  on  the  gross  weight  and  the  ore 
paid  for  on  the  net  weight. 

Lease  and  Option. 

An  agreement  to  work  a  mine  is  good  consid- 
eration for  a  promise  to  sell  it. — Clarno  v.  Grayson, 
46  Pac.  ^26.  It  follows  that  the  acceptance  of  a 
working  lease  is  good  consideration  for  an  option 
on  the  same  property,  and  the  combination  of  the 
two  contracts  in  the  same  or  by  distinct  papers  is 
of  common  occurrence. 

Form  of  Lease  and  Option. 

Follow  the  Form  of  Lease  on  page  2-58  to  and  in 
eluding  its  last  covenant  (No.  11),  and  proceed  as 
follows: 

And  in  consideration  of  the  acceptance  of  the  fore- 
going lease  and  the  expenditures  to  be  made  thereunder  and 
the  well  and  faithful  keeping  of  the  covenants  thereof,  the 
said  lessee  shall  have  the  right  to  purchase  the  said  de- 
mised premises  by  payment  of  the  sum  of  ten  thousand  dol- 
lars on  or  before  the  first  day  of  May,  A.  D.  1903,  time  be- 
ing of  the  essence  of  the  contract  as  to  such  payment. 
And  upon  the  tender  of  such  payment  the  lessor  will  make, 
execute,  acknowledge  and  deliver  at  his  own  cost  and 
charges,  good  and  sufficient  deed  or  deeds  of  warranty  to  be 
delivered  to  the  lessee  or  such  person  or  company  as  he 
shall  nominate,  conveying  the  said  premises  clear  of  incum- 
brance. 

The  forfeiture,  surrender  or  termination  of  the  above 
lease  for  any  cause  shall  render  this  option  void,  and  the 
above  mentioned  payment  may  not  thereafter  be  tendered. 

Here  insert  the  last  two  paragraphs  of  the  lease 
and  follow  with  seals  and  signatures,  which  do  not 
have  to  be  repeated  separately  at  the  end  of  both 
lease  and  option. 

PLACER  LEASE. 

Follow  the  above  form  except  in  the  description 
and  the  numbered  covenants  which  may  be  as  fol- 
lows: 

Description. 

The  Yellow  Bug  Placer  Mining  Claim,  Survey  Lot  No. 
88,  and  300  inches  of  water  in  the  Arapahoe  ditch. 


264  MINING  LEASE. 

Covenants. 

1.  To  enter   upon   said   mine   or   premises   and  work 
the   same   so   as    to   take   out   the   greatest   possible   amount 
of   gold   with    due    regard    to    the    development    and    preser- 
vation of  the  unwashed  ground  for  future  continued  work- 
ing and  to  the  special  covenants  hereinafter  reserved. 

2.  To  work  and  wash  said  premises  steadily  and  con- 
tinuously from  the  date  of  this  lease  with  a  force  of  at  least 
two  men  and  with  as  much  of  said  water  as  can  be  obtained 
and  used.      Cessation  of  work  for  the  total  number  of  three 
secular   days    in    any    one    calendar   month   shall    be   consid- 
ered  a  violation  of  this   covenant.       But   no   work   shall   be 
required  while  the  ground  is  frozen. 

3.  To  take  care  of  the   dump   and   tailings   so  as   to 
prevent  their  accumulation   upon   any   ground   of  the   lessor 
remaining  unworked. 

4  and  5.     Same  as  lode  lease. 

6.  To  clean  up  the  gold  not  oftener  than  once  every 
two  weeks  and  at  least  as  often  as  once  in  four  weeks  and 
to  give  48  hours'  notice  to  lessor  of  the  date  intended  for 
clean  up,  and  at  each  clean  up  lessor  shall  have  the  right 
to  be  personally  present  or  to  send  some  one  person  to  rep- 
resent him  and  be  present  and  assist  at  such  clean   up  and 
at   the   retorting  of  the  amalgam   and   the   weighing   of  the 
retort,  and  to  make  no  clean  up,  partial  or  general,  without 
giving  such  notice. 

7.  To   pay   as   royalty   to   the   lessor    25   per   cent,    of 
the  gross  proceeds  of  working  under  this  lease  by  delivery 
immediately  after  each  clean  up*  of  the  whole  of  the  retort 
to  the  lessor  or  to  his  agent  present  on  the  ground,  and  the 
said    lessor    covenants   forthwith    to   cause   the   same    to   be 
shipped   to    the   mint    at    Denver    or    to    some    regular    gold 
buyer  at  Fairplay  or  Denver  and  to  return  to  lessee  75  per 
cent,  of  the  net  proceeds. 

8.  To   deliver   to   said   lessor   the   said   premises   with 
the    appurtenances    in    good    order    and    condition    and    the 
ground   and  water  ready   for   immediate   continued   use   and 
working  without  demand  or  notice  on  said  first  day  of  May, 
A.   D.   1903,   or  at   any  time   previous  upon  demand  for  for- 
feiture. 

Second  Form  of  Eoyalty  Covenant. 
After  the  *  proceed  as  follows: 

To  the  lessor  or  to  his  agent  present  on  the  ground, 
of  one-quarter  by  weight  of  the  amalgam  or  of  the  retort 
as  he  may  elect. 


MINING  LEASK.  265 

Third  Form  of  Royalty  Covenant. 

After  the  *  proceed  as  follows: 

Of  25  per  cent,  of  the  net  mint  returns  or  proceeds  of 
sale  to  some  regular  gold  buyer  at  Fairplay  or  Denver  for 
use  of  the  lessor. 

Covenant  to  Work. 

Where  royalty  is  reserved  in  the  usual  form 
there  is  an  implied  covenant  to  keep  at  work.— 
Rorer  Co.  v.  Trout,  5  Am.  St.  R.  285;  Aye  v.  Phila- 
delphia Co.  44  Atl.  5~>5.  Otherwise  where  there  is  a 
fixed  rent,  or  a  rent  based  on  an  assumed  minimum 
production. — Mclntyre  v.  Mclntyre  Co.  11  N.  E.  645. 

An  agreement  to  work  is  not  necessarily  an 
agreement  to  work  continuously. — Caley  v.  Portland, 
~>6  Pac.  350.  Failure  to  start  work  is  same  as  quit- 
ting.— Woodward  v.  Mitchell,  39  N.  E.  439.  A  parol 
agreement  as  to  what  shall  be  considered  sufficient 
work  is  binding  on  lessor  and  his  grantees. — Hartley 
v.  Phillips,  36  Atl.  217. 

To  recover  substantial  damages  against  a  lessee 
failing  to  work,  the  plaintiff  must  show  that  the  ore 
could  have  been  mined  to  a  profit. — Colo.  F.  Co.  v. 
Pry  or,  51  Pac.  51. 

Right  to  Quit. 

Under  the  covenant  to  work  in  the  above  forms, 
the  lessee  has  no  right  to  quit  at  discretion.  If 
such  right  is  to  be  given,  as  in  most  instances  of 
common  equity  it  should  be  given,  insert  after  the 
second  covenant: 

"The  said  lessee  reserving  the  right  to  quit  and  aban- 
don  after  at  least  two  months'  continuous  work  under  this 
covenant." 

or  as  the  case  may  be.  When  the  party  quitting  is 
to  give  notice  it  is  not  always  material  that  it  be 
given  in  the  manner  stipulated. — McCahan  v.  Whar- 
ton,  16  M.  R.  239.  The  lessee  may  quit  at  will  under 
a  lease  containing  no  covenant  to  work. — Glasooiv 
v.  Chartiers  Co.  25  Atl.  232:  17  M.  R.  —. 


266  MINING  LEASE. 

Co-Tenant  Owners — Partnership  Lessees. 

The  legal  relation  of  co-lessees  is  that  of  part- 
ners.— Meagher  v.  Reed,  14  Colo.  350.  One  of  such 
co-tenants  or  co-partners  cannot  give  a  lease  of  the 
whole  mine  technically  binding  on  all  the  co-owners, 
but  where  they  cannot  agree  as  to  mode  of  working, 
a  majority  interest  must  control. — Dougherty  v. 
Creary,  1  M.  R.  36.  In  Paul  v.  Cragnas,  59  Pac.  857, 
the  lessee  of  a  minority  interest  was  allowed  heavy 
damages  against  the  majority  owner  disputing  his 
right  to  enter  and  mine.  We  cannot  gather  from  the 
opinion  upon  what  theory  this  anomalous  case  was 
decided.  BELKNAP,  J.,  dissented. 

Assessments — Forfeiture  to  Co-Partner. 

An  assessment  is  defined  in  Shaw  v.  Homer,  7 
Colo.  App.  83,  as  "an  apportionment  among  the  par- 
ties interested,  of  an  amount  of  money  necessary  and 
not  on  hand  for  development  purposes."  It  must  be 
levied  by  one  having  authority,  each  partner  must 
have  notice  of  it  and  a  forfeiture  does  not  ensue 
for  failure  to  pay  unless  there  is  some  contract  to 
that  effect.  Such  a  contract  was  enforced  in  Joseph 
-v.  Davenport,  89  N.  W.  1081. 

Fixtures. 

Unless  otherwise  covenanted  the  fixtures  belong 
to  the  lessee  and  are  removable. — Conrad  v.  Saginaw 
Co.  20  N.  W.  39;  52  Am.  R.  817.  And  this  applies  to 
a  forfeited  lease.— Mickle  v.  Douglass,  39  N.  W.  198. 
A  mortgage  on  fixtures  was  held  good  after  for- 
feiture in  Alberson  v.  Elk  Creek  Co.  65  Pac.  979. 

Letting  by  Agent. 

The  agent  in  charge  has,  under  his  general  and 
implied  powers,  the  right  to  let  short  leases  of  the 
ground,  in  blocks  or  parcels. — Bicknell  v.  Austin  Co. 
62  Fed.  432. 

And  though  unauthorized  to  lease,  if  the  com- 
pany stand  by  and  allow  the  lessee  to  spend  money, 
they  will  be  bound. — Hoosac  Co.  v.  Donat,  10  Colo. 
529. 


MINING  LEASE:.  267 

Assignment, 

A  lessee  is  not  in  general  released  from  personal 
liability  by  assigning  his  lease,  but  remains  in  the 
nature  of  a  surety  to  his  landlord. — Pittsburg  Co.  v. 
G-reenlee,  80  Atl.  489;  Wilson  v.  Gerhardt,  9  Colo.  585. 

A  Non-Assessable  Interest  in  a  lease  is  an  interest 
chargeable  with  its  full  share  of  all  cost  of  mining, 
as  well  as  of  freight  and  treatment  as  far  as  the  ore 
proceeds  will  pay  such  cost,  but  not  chargeable  in 
case  of  working  to  a  loss.  The  decision  in  Maloney 
v.  Love,  11  Colo.  App.  288,  holding  it  entitled  to  a 
full  share  of  the  gross  proceeds  is  wholly  against 
the  meaning  of  the  term  as  understood  by  miners. 
In  Taylor  v.  Thomas  (Colo.),  71  Pac.  382,  a  non- 
assessable interest  in  a  lease  was  charged  with  its  full 
proportion  of  expenses  to  the  extent  of  the  ore  pro- 
ceeds. 

Forfeiture. 

Unless  the  lease  provide  for  forfeiture  none  oc- 
curs for  non-payment  of  rent  or  breach  of  covenant. 
— Plummer  v.  Hillside  Co.  104  Fed.  208;  Wake  field 
v.  Sunday  Lake  Co.  49  N.  W.  135.  A  forfeiture  en-' 
forced  by  collusion  with  employes  of  lessee  is  not 
lawful. — 49  N.  W.  135.  Forfeiture  cannot  be  en- 
forced by  a  party  who  is  himself  in  default. — Ingram 
v.  Golden  Co.  65  Pac.  549. 

Draining  and  pumping  is  counted  as  labor  under 
a  covenant  to  keep  at  work. — Miller  v.  Chester  Co.  18 
Atl.  565. 

Where  parties  have  acted  loosely  in  complying 
with  the  terms  of  lease  the  lessor  cannot  abruptly  be- 
come strict  and  declare  a  forfeiture. — Westmoreland 
Co.  v.  DeWitt,  18  Atl.  724;  Hukill  v.  Myers,  15  8.  E. 
151. 

Miscellaneous  Decisions. 

An  advertisement,  bid  and  acceptance  make  a 
complete  agreement  for  a  lease. — Cochrane  v.  Justice 
Co.  16  Colo.  415.  And  "the  lessor  cannot  after  such 
proceedings  insist  on  new  and  arbitrary  terms.— Id. 


268  LICENSE. 

Under  a  mining,  lease  covenanting  to  pay  a  cer- 
tain royalty  and  that  it  shall  amount  to  at  least  a 
given  sum,  lessees  are  not  liable  if  after  full  testing 
no  merchantable  ore  is  found. — Gibben  v.  Atkinson, 
15  M.  R.  428. 

Whether  a  lease  has  been  extended  is  a  ques- 
tion of  fact  which  the  Court  cannot  take  away  from 
the  jury. — Riddle  v.  Mellon,  23  Atl.  241. 

A  tenant  cannot  take  leases  of  two  hostile  titles 
and  then  compel  his  lessors  to  interplead. — Standley 
v.  Roberts,  59  Fed.  83(1 

A  lessee  attempting  to  relocate  the  ground  for- 
feits all  rights  under  his  lease. — Silver  City  Co.  v. 
Lowry,  57  Pac.  11;  Affd.  179  U.  8.  196. 

A  lease  of  a  mining  shaft  means  not  only  the 
shaft  but  the  ground- accessible  through  such  shaft. 
—Wesling  v.  Kroll,  J,l  N.  W.  944. 

The  receipt  of  royalty  admits  the  validity  of  the 
lease. — Bicknell  v.  Austin  Co.  62  Fed.  432;  Burk- 
hard  v.  Mitchell,  16  Colo.  376. 

Waiver  of  conditions  may  be  shown  by  parol. — 
Equator  Co.  v.  Guanella,  IS  Colo.  548;  Bullis  v. 
Noyes,  12  S.  W.  397.  And  release  of  Royalty. — Craw- 
ford v.  Bellevue  Co.  38  Atl.  595. 


LICENSE. 


Instead  of  a  lease  a  license  may  be  granted. 
The  material  distinction  between  a  lease  and  a  li- 
cense are  that 

1.  A  license  is  not  exclusive. 

2.  It  invests  the  licensee  with  no  property   in 
the  mineral  until  it  is  severed   from  the  ground. 

3.  It  may  be  revoked  at  any  time. 

4.  It  is  not  transferrable. 

The  above  stated  differences  show  that  a  license 
practically  amounts  to  a  mere  privilege  to  work  at 
the  owner's  will.  It  is  a  permission  sufficient  to  de- 


LICENSE.  269 

feat  the  charge  of  trespass  but  is  not  that  property 
in  the  soil  such  as  parties  contracting  on  equal 
terms  for  permanent  working  naturally  bargain  for. 
On  the  other  hand,  it  is  usually  granted  without 
any,  or  for  a  nominal  consideration. 

It  has  been  held  in  California  that  a  lease  which 
did  not  bind  the  lessee  to  work  was  a  mere  license. — 
Wheeler  v.  West,  11  Pac.  871;  20  Id.  45.  The  hold- 
ing is  an  extreme  one  and  ought  not  to  become  in 
conscience  a  precedent.  In  every  lease,  verbal  or 
written,  reserving  royalty,  there  is  an  implied  cove- 
nant to  work  (See  p.  265)  and  the  express  obligation 
to  work  is  not  one  of  the  distinctions  between  lease 
and  license.  The  exclusive  right  to  mine  implies 
a  lease  and  not  a  license. — Cons.  Coal  Co.  v.  Peers, 
37  N.  E.  937;  Stinson  v.  Hardy,  41  Pac.  116. 

The  general  nature  of  a  license  as  distinguished 
from  a  lease  or  other  like  grant  is  stated  in  Massot 
v.  Moses,  8  M.  R.  607;  Doe  v.  Wood,  9  M.  R.  182. 

1.  Not  Exclusive. 

The  owner  may  work  himself,  or  allow  others 
to  work  upon  the  same  ground. — Johnstown  Co.  v. 
Cambria  Co.  9  M.  R.  226;  Woodside  v.  Ciceroni,  93 
Fed.  1. 

2.  Passes  No  Property  or  Vested  Estate. 

A  license  is  authority  for  the  temporary  occu- 
pation of  land  or  to  enter  upon  and  do  particular 
acts  in  and  about  it.  It  creates  no  estate. — Fuhr  v. 
Dean,  (J  M.  R.  216.  After  it  is  broken  by  licensee 
the  rock  in  a  quarry  belongs  to  him. — McKee  v. 
Brooks,  20  Mo.  526. 

3.  Revocability. 

Although  revocable  the  owner  cannot  arbitrar- 
ily oust  the  licensee  without  compensation  for  ex- 
penditures made. — Bush  v.  Sullivan,  9  M.  R.  214. 
After  a  proper  revocation  the  licensee  has  no  title  in 
what  he  continues  to  break  and  sever. — Williams  v. 
Morrison,  32  Fed.  177.  A  license  once  given  con- 
tinues till  revoked. — Keeler  v.  Green,  12  M.  R.  465. 


270  PROSPECTING  CONTRACT. 

An  executed  license  (to  build  a  ditch)  amounts  to  a 
grant. — De   Graffenried   v.    Savage,   47   Pac.    902. 

4.     Not  Assignable. 

Being  only  a  personal  privilege  any  transfer 
operates  as  a  forfeiture. — Dark  v.  Johnston,  9  M.  R. 
283.  But  if  the  license  imply  a  grant  of  the  ore  it 
may  be  assigned. — Muskett  v.  Hill,  5  Bing.  N.  C.  69^. 

By  One  Co-Tenant. 

As  to  whether  at  all  or  to  what  extent  the  license 
of  one  or  more  of  several  co-tenants  is  valid,  see  Job 
v.  Potion,  14  M.  R.  329;  Tipping  v.  Robbins,  37  N.  W. 
427;  Omaha  Co.  v.  Tabor,  16  M.  R.  184. 


PROSPECTING  CONTRACT. 


Much  litigation  has  grown  out  of  contracts  of 
this  kind  owing  to  the  loose  manner  in  which  they 
are  generally  undertaken  and  the  strong  induce- 
ments to  shirk  their  obligations  when  a  rich  discov- 
ery has  been  made. — Hurley  v.  Ennis,  12  M.  R.  360; 
Johnstone  v.  Robinson,  Id.  396. 

The  following  form  covers  the  legal  points 
necessary  to  be  guarded  in  this  class  of  contract: 

GRUB  STAKE  PROSPECTING  CONTRACT. 

In  consideration  of  provisions  advanced  to  me  by 
Charles  C.  Hueger,  and  of  his  agreement  to  supply  me  from 
time  to  time,  as  I  may  reasonably  demand  them,  with  tools, 
grub  and  mining  outfit  generally,  and  the  sum  of  fifty  dol- 
lars in  hand  paid,  I  agree  to  prospect  for  lodes  and  deposits 
in  Silver  Bow  County,  Montana,  nnd  to  locate  all  discov- 
eries which  I  may  consider  worth  the  expenditure,  and  re- 
cord the  same  in  the  joint  names  of  said  outfitter  and  my- 
self, and  in  our  names  only,  as  equal  owners. 

My  time  and  labor  shall  stand  against  his  money,  pro- 
visions, etc.,  as  aforesaid.  All  expenses  of  survey  and  rec- 
ord shall  be  paid  by  the  outfitter,  and  I  agree  to  make  no 
debts  on  account  of  this  agreement.  Work  done  on  claims 


PROSPECTING  CONTRACT.  271 

after  record  and  before  the  expiration  of  this  contract 
shall  be  considered  as  done  under  this  contract,  and  no 
charge  for  labor  or  time  shall  be  made  for  the  same.  This 
contract  shall  stand  good  during  the  whole  of  the  summer 
and  fall  of  1903  (expiring  Dec.  1st)  and  during  all  of  that 
period  I  will  not  work  or  prospect  on  my  own  account,  or 
for  any  parties  other  than  said  outfitter. 

Dated  April  1,  1903.  '  CHARLES  BARRON. 

I  agree  to  the  terms  above  stated. 

CHARLES  C.  RUEGER. 

Under  the  following  form  the  prospector  is  al- 
lowed wages  and  takes  a  smaller  interest  in  lodes 
found : 

AGREEMENT  of  date  March  7,  A.  D.  1903,  between  Au- 
gustus R.  Spechtj  Charles  J.  Allen,  and  Arthur  D.  Bullis, 
outfitters,  and  John  Owent  prospector. 

WITNESSETH,  That  said  outfitters  agree  to  pay  to  said 
prospector  on  demand  seventy-five  dollars  ($75)  for  the 
purchase  of  tools  and  packing  outfit,  and  twenty-five  dol- 
lars ($25)  for  railroad  fare  and  expenses  from  Idaho 
Springs  to  Creede,  and  to  allow  said  prospector  wages  at 
three  dollars  per  day  for  each  secular  day  after  arrival 
at  that  place,  until  November  1,  1903,  unless  this  contract  is 
rescinded  by  notice  before  that  date,  and  to  pay  all  expenses 
of  surveys  and  records  to  be  made  under  this  contract,  and 
for  powder,  fuse  and  other  mining  materials  if  required 
by  said  prospector,  to  the  extent  of  fifty  dollars. 

And  in  consideration  of  the  premises,  said  prospector 
agrees  industriously  and  to  the  best  of  his  skill  to  prospect 
for  lodes  and  deposits  in  the  neighborhood  of  Creede  camp, 
within  the  limits  of  Hinsdale,  Rio  Grande  and  Saguache 
counties,  and  to  locate  and  record  all  discoveries  which  in 
his  judgment  are  worth  holding,  in  the  joint  names  of  all 
parties  hereto — one-fourth  interest  to  each. 

And  that  he  will  use  no  company  name  and  make  no 
debts  against  his  associates. 

And  that  he  will  at  least  once  each  month  report 
progress  and  all  discoveries  made,  by  letter  to  said  A.  D. 
Bullis. 

All  work  done  in  development  after  record  shall  be 
considered  as  work  done  under  this  agreement. 

And  said  prospector  agrees  further  not  to  prospect 
on  his  own  account  nor  for  any  other  persons  during  the  life- 
time of  this  contract  and  if  at  any  time  within  one  year 
thereafter  he  shall  become  interested  by  location  or  pur- 
chase in  any  claims  on  which  he  may  have  prospected  un- 
der this  contract,  he  will  allow  his  associates  to  take  an 
equal  interest  with  himself  on  the  same  terms  and  at  the 
same  cost  at  which  he  has  acquired  such  interest. 


272  PROSPECTING  CONTRACT. 

On  final  settlement  full  wages  are  to  be  allowed  as 
above  agreed,  but  said  prospector  shall  be  charged  with  his 
full  fourth  of  any  expenses  over  and  above  the  sums  herein 
expressed,  and  shall  account  and  pay  for  all  tools  and  sup- 
plies on  hand  when  contract  expires,  if  terminated  on  his 
notice ;  but  shall  keep  such  tools  and  supplies  if  contract 
determined  at  outfitters'  election,  or  by  expiration  of  the 
full  term  limited,  or  by  failure  to  remit  proper  charges 
monthly  on  demand.  And  the  said  prospector  shall  have 
no  right  to  quit  on  notice  until  he  shall  have  prospected 
two  full  months  under  this  agreement. 

Witness  the  hands  and  seals  of  said  parties. 

AUG.  R.  SPECHT.  [SEAL.] 

CHARLES    J.    ALLEN.     [SEAL.] 
A.    D.    BULLIS.  [SEAL.] 

JOHN    OWEN.  [SEAL.] 

The  contract  does  not  require  a  seal,  and  is  not 
within  the  Statute  of  Frauds,  and  therefore  may  be 
verbal. — Hurley  v.  Ennis,  supra;  Moritz  v.  Lavelle, 
16  M.  R.  236;  Meylette  v.  Brennan,  38  Pac.  75;  Ray- 
mond v.  Johnson,  49  Pac.  J{92.  There  is  an  isolated 
contrary  ruling  in  Nevada. — Craw  v.  Wilson,  40  Pac. 
1076. 

The  association  is  practically  a  partnership. — 
Lawrence  v.  Robinson,  12  M.  R.  387;  Abbott  v.  Smith, 
3  Colo.  App.  265. 

If  the  outfitter  neglect  to  furnish  the  agreed  and 
necessary  supplies,  such  failure  may  be  treated  as  a 
condition  precedent,  and  the  prospector  is  at  liberty 
to  search  for  mineral  upon  his  own  account. — Mur- 
ley  v.  Ennis,  supra. 

Where  a  prospector  made  locations  which  he 
concealed  from  his  outfitters,  and  afterwards  sold, 
he  was  compelled  to  account  for  the  outfitters'  share 
of  the  price. — Jennings  v.  Richard,  15  M.  R.  624- 

But  he  was  not  held  in  this  instance  to  account 
to  outfitter  for  any  share  in  a  lode,  the  float  of  which 
he  discovered  while  prospecting,  but  did  not  find 
the  lode  till  afterward.  Of  course,  the  rule  in  such 
cases  must  vary  according  to  the  facts  and  the  good 
faith  in  the  premises. 

Where  an  association  for  prospecting  purposes 
is  abandoned,  the  several  late  partners  may  perfect 
locations  on  discoveries  made  on  their  several  ac- 


WORKING  CONTRACT.  273 

count. — Page  v.  Summers,  Id  M.  R.  617.  If  one  of 
the  associates  quit  before  mineral  is  struck  he  can- 
not claim  an  interest  in  the  perfected  location. — 
McLaughlin  v.  Thompson,  29  Pac.  816. 

Permission  by  the  owner  to  prospect  his  ground 
must  be  exercised  within  a  reasonable  time. — C& 
lioon  v.  Bay  and,  1  N.  Y.  Sup.  814.  But  in  Woodside 
v.  Ciceroni,  93  Fed.  1,  the  license  was  construed  as 
perpetual.  On  contract  to  prospect  and  test  land  for 
mineral  value,  for  what  amounts  to  sufficient  search, 
see  "Wells  v.  Leelc,  25  Atl.  101;  Jamestoivn  Co.  v.  Eg- 
bert, Id.  1~>1 ;  Petroleum  Co.  v.  Coal  Co.  IS  8.  W.  6.5. 


WORKING  CONTRACTS. 


A  contract  to  sink  a  shaft  does  not  necessarily 
imply  that  the  vein  will  be  followed. — Buckeye  Co. 
v.  Carlson,  66  Pac.  168.  The  Contractor  is  not  bound 
to  timber  where  the  Contract  is  silent  on  that  point. 
—No.  5  M.  Co.  v.  Bruce,  3  M.  R.  146, 

On  a  contract  to  sink  on  the  vein  where  the  vein 
disappears  the  contractor  is  not  bound  to  go  down 
through  the  country. — Woodworth  v.  McLean,  US. 
W.  43. 


EXAMINATION  OF  TITLE. 


The  written  title  to  a  mining  claim  begins  with 
the  location  certificate,  after  which  the  conveyances 
and  incumbrances  should  appear  upon  the  abstract 
as  in  other  classes  of  real  estate. 

Inspection  and  Survey. 

In  addition  to  the  abstract  of  title  a  survey  and 
local  inspection  are  indispensable  to  security,  espe- 
cially when  the  claim  is  not  patented. 


274  EXAMINATION  OP  TITLE. 

This  inspection  and  survey  should  result  in  as- 
certaining the  depth  of  discovery  shaft,  and  whether 
it  shows  a  well  denned  crevice;  whether  the  loca- 
tion notice  was  duly  posted  and  what  it  contains 
(p.  38) ;  whether  the  stakes  were  properly  set; 
whether  the  claim  (as  far  as  such  fact  can  be  fairly 
ascertained)  is  laid  so  as  to  cover  the  apex  or  gen- 
eral course  of  the  lode,  and  more  especially  what 
shafts,  tunnels,  prospect  holes,  stakes,  notices  and 
improvements,  indicate  the  presence  of  hostile 
claims;  and  if  such  intervening  or  overlapping  hos-. 
tile  claims  are  found,  their  seniority  or  juniority 
should  be  established. 

The  abstract  (at  least  until  patent)  may  show 
a  clear  chain  of  title,  and  may  be  based  on  a  record 
senior  to  other  records  on  the  same  vein>  and  still 
the  title  may  be  absolutely  worthless. — Patterson  v. 
Hitchcock,  5  M.  R.  542. 

An  adverse  senior  discovery  may  exist  within  a 
few  feet  of  the  discovery  of  the  claim  under  examina- 
tion. Every  hole  or  stake  in  proximity  to  the  claim 
should  be  examined,  its  history  traced,  and  the  pos- 
sibility of  danger  from  that  source  guarded  against. 

Whether  the  annual  labor  has  been  done  should 
also  be  ascertained. 

Such  inspection  having  been  made,  the  course 
of  examination  will  be  as  follows,  the  points  peculiar 
to  the  title,  as  a  mining  title,  being  noted  as  they 
occur: 

1. THE     ABSTRACT. 

The  abstract  should  be  certified  by  the  recorder 
or  by  some  reputable  abstract  firm,  to  contain  all 
deeds  and  instruments  filed  or  recorded,  in  the  of- 
fice of  the  recorder,  conveying,  encumbering  or  in 
any  manner  affecting  title  to  the  property  in  ques- 
tion. 

The  abstract,  however,  amounts  to  nothing  more 
than  a  guide  or  memorandum  to  the  attorney  in  his 
examination.  Each  deed  and  other  instrument 


EXAMINATION  OF  TITLE.  275 

should  be  inspected  at  length,  either  by  the  original, 
by  the  record  or  by  a  certified  copy. 

The  abstract  should  be  furnished  by  the  vendor 
at  his  own  charges. 

2. — LOCATION    CERTIFICATE. 

The  material  points  to  be  observed  in  the  loca- 
tion certificate  are  that  it  contains: 

1.  The  name  of  the  lode. 

2.  The  names  of  the  locators. 

3.  The  date  of  location. 

4.  A  proper  description.     See  page  72. 

5.  The   location   certificate   of   a   placer   should 
contain  the  name  of  the  claim  and  of  the  locator, 
date  of  location,  description,  and  there  should  be  one 
locator  for  every  20  acres.     See  page  198. 

3. — CONVEYANCES. 

A  mine  is  conveyed  by  deed  or  encumbered  by 
mortgage  the  same  as  other  real  estate. 
The   description   should   contain: 

1.  The  name  of  the  lode. 

2.  If  patented,  the  number  of  survey  lot. 

3.  Mining  district,  County  and   State. 

4.  Usually  in  proper  conveyancing,  the  number 
of  feet  in  length  and  width  are  inserted,  and  some- 
times  (especially  if  the  conveyance  be  of  part  of  a 
claim)  their  situation  relative  to  center  of  discovery 
shaft. 

The  essential  points  of  such  description  are  the 
name  of  the  lode,  district,  County  and  State. 

Placer  claims  are  usually  described  by  their 
names,  or  if  patented  by  the  names  and  number  of 
the  survey  lot.  In  early  locations  they  were  usually 
numbered  with  reference  to  the  local  gulch. 

Bach  deed  or  other  instrument  must  be  examined 
to  ascertain: 

That  it  has  been  signed  by  the  proper  parties. 

That  it  is  under  seal. 

That  it  sets  forth  a  consideration. 


276  EXAMINATION  OF  TITLE. 

That  it  contains  a  sufficient  description  of  the 
premises. 

That  it  contains  sufficient  words  of  conveyance. 

That  no  lien  for  purchase  money  is  therein  re- 
served. 

That  there  are  no  words  of  condition,  exception 
or  reservation  by  which  Jess  than  a  fee  simple  estate 
may  be  limited,  or  by  which  a  supposed  conveyance 
may  be  construed  as  a  mortgage. 

That  each  letter  of  attorney  grants  sufficient 
power  to  sell  and  convey. 

That  each  deed  under  power  of  attorney  is  exe- 
cuted in  conformity  with  such  power,  and  that  the 
name  of  the  principal,  at  least,  appears  in  the  body 
of  the  deed,  and  that  it  is  signed  "A.  B.  by  C.  D.,  his 
attorney  in  fact,"  or  words  equivalent  thereto. 

That  each  title  bond  or  agreement  to  convey  has 
been  released,  or  has  expired  by  limitation  without 
performance,  unless  a  conveyance  has  been  made  in 
conformity  with  such  bond  or  agreement. 

That  proper  stamps  were  affixed  during  the  pe- 
riod when  stamps  were  required — July  1,  1898,  to  July 
1,  1902. 

That  every  mortgage,  trust  deed,  attachment, 
miner's  lien,  certificate  of  levy,  tax  sale,  judicial 
sale,  judgment  or  transcript,  has  been  either  properly 
proceeded  upon  if  title  is  claimed  under  it;  or,  on 
the  other  hand,  satisfied  of  record  if  it  is  found  in 
opposition  to  a  clear  title. 

That  especially  in  sales  under  a  trust  deed,  due 
publication  has  been  made  and  all  the  terms  of  such 
trust  deed  complied  with  as  to  time,  place  and  terms 
of  sale,  etc.,  all  of  which  should  appear  recited  in 
the  deed  made  by  the  trustee  to  the  purchaser. 

That  every  letter  of  attorney,  deed,  mortgage, 
etc.,  has  been  duly  acknowledged  before  some  proper 
officer.  See  page  27/S. 

Deeds  by  Married  Women. 

The  separate  acknowledgment  by  a  married 
woman  has  not  been  required  in  Colorado  since 


EXAMINATION  OF  TITLE.  277 

1874.     Where   still   required   in   any   State,   such   ac-v 
knowledgment    is    generally    essential     to     pass    the 
wife's  title,  and  is  not  merely   a  mode  of  proof  of 
the  delivery  of  the  deed  which  is  the  usual  function 
of  an  acknowledgment.    See  page  2.'iU. 

After  Acquired  Title. 

A  warranty  deed  conveys  to  the  grantee  any 
after  acquired  title  of  his  grantor,  and  even  a  quit- 
claim made  pending  application,  may  carry  the  pat- 
ented title  to  the  grantee. — Crane  v.  Salmon,  41  Cal. 
63;  Bradbury  v.  Davis,  3  M.  R.  398. 

4. — PATENTS. 

Where  the  claim  is  patented  the  Patent  should 
appear  in  the  Abstract  although  failure  to  record 
the  patent  is  not  the  same  as  a  like  failure  in  cast 
of  a  deed,  a  certified  copy  of  the  patent  being  always 
procurable  from  the  General  Land  Office.  The  pat- 
ent carries  the  title  back  to  the  entry  at  least. — 
Benson  Co.  v.  Alta  Co.  145  U.  S.  428. 

The  form  of  patent  is  quite  different  from  that 
of  a  patent  for  agricultural  lands,  and  contains 
specific  exceptions  as  to  easements,  etc.,  and  in  the 
form  used  before  1888  and  in  instances  since  that 
date  a  plat  of  the  survey;  and  excepts  the  surface 
ground  of  any  previous  entry  crossing  the  line  of 
the  lot  conveyed. 

Where  such  exclusions  occur  the  patentee  has 
no  claim  to  the  vein  in  such  excluded  area.  And  in 
instances  the  dates  of  application  and  of  entry  or 
even  of  the  discovery  may  continue  to  be  material 
where  the  question  of  relation  arises.  See  p.  LW. 

Where  a  patent  has  been  issued  there  is  no 
necessity  for  a  strict  examination  of  the  location 
certificate  or  of  the  various  acts  of  location.  It  cures 
all  defects  incident  to  the  location  and  in  most  in- 
stances any  formal  break  in  the  chain  of  title  prior 
to  the  application.  And  especially  it  cuts  out  prior 
hostile  titles  which  have  failed  to  adverse  or  to 
successfully  maintain  their  adverse. 


278  EXAMINATION  OF  TITLE. 

But  it  does  not  divest  liens,  nor  the  title  of 
a  co-tenant  dropped  in  the  patent  application  (see 
p.  117),  or  at  least  it  may  be  possible  for  a  party 
having  a  claim  to  an  interest  in  the  possessory  title 
to  prove  an  equity  such  as  would  make  the  paten- 
tee, trustee  of  the  title  for  his  use.  Nor  does  it 
dispense  with  the  importance  of  a  surface  examina- 
tion to  see  that  the  corners  agree  with  the  plat 
and  that  the  survey  lot  substantially  encloses  the 
vein. 

5. PLAT    OF    PATENT. 

In  the  older  form  of  patents  was  inserted  a 
diagram  in  which  the  ground  conveyed  was  colored. 
But  in  cases  where  the  patent  contains  no  such 
plat  a  certified  copy  should  be  obtained  from  the 
Surveyor  General's  office,  and  a  careful  comparison 
of  the  plat  should  be  made  with  the  metes  and 
bounds  contained  in  the  description  and  the  exclu- 
sions, if  any,  recited  in  the  patent. 

6. — LIENS   AND  JUDICIAL  PROCEEDINGS. 

A  certificate  should  then  be  had  from  the  Clerk 
of  the  District  Court  of  the  proper  county,  certify- 
ing that  there  are  no  judgments,  transcripts,  attach- 
ments or  other  liens  of  record  in  such  court  against 
the  property,  or  appearing  against  the  names  of 
any  of  the  present  or  former  owners  during  such 
time  as  the  abstract  may  show  it  was  liable  to  lien 
through  each  particular  owner.  And  that  there  are 
no  suits  pending  affecting  such  property  or  the  title 
thereto,  either  in  such  District  Court,  or  in  Su- 
preme Court  or  Court  of  Appeals,  on  error  or  ap- 
peal. If  there  are  suits  or  liens  he  will  so  certify, 
with  reference  to  term  and  docket,  whereupon  they 
should  be  examined  by  inspection  of  the  original 
records,  with  the  same  particularity  as  the  deeds 
in  the  abstract,  so  that  it  may  be  seen  to  what 
extent  they  encumber  the  premises  or  threaten  the 
quiet  enjoyment  thereof;  and  if  such  suits  or  liens 
have  been  satisfied  or  settled,  it  should  be  made 
plainly  so  to  appear  upon  the  records. 


EXAMINATION  OF  TITLE.  279 

FORM    OF    CLERK'S    CERTIFICATE. 

STATE  OF  COLORADO,  County  of  Teller:  ss. 

I,  Alexander  W.  Grant,,  Clerk  of  the  District  Court  in 
and  for  said  County,  do  hereby  certify  that  there  are  no 
judgments,  attachments,  transcripts  or  other  liens,  appear- 
ing of  record  against  (here  insert  name  of  each  party  who 
has  owned  an  interest  within  six  years)  or  any  of  them  in 
said  court  within  six  years  last  past.  And  that  there  are 
no  suits  pending  in  safd  court  claiming  or  affecting  title  to 
the  Edelmira  lode  mining  claim,  in  said  County. 

Witness  my  hand  and  seal  of  said  Court,  this 
12th  day  of  April,  A.  D.  1903. 

[SEAL.]  ALEXANDER  W.  GRANT,  Clerk. 

A  like  certificate  should  be  had  from  any  other 
local  court  of  record,  from  the  appellate  and  the 
federal  courts.  A  patent  does  not  divest  liens  ac- 
crued against  the  possessory  title.  They  are  espe- 
cially saved  by  the  terms  of  A.  C.  §  2332. 

The  lien  of  a  judgment  in  Colorado  is  confined 
to  those  cases  where  a  transcript  is  filed  in  the 
Recorder's  office  and  expires  six  years  after  date  of 
its  original  entry.— Code,  §  232;  3  M.  A.  S.  §  2529. 
And  in  any  State  where  a  similar  provision  exists 
the  clerk's  certificate  is  not  usually  called  for. 

There 'always,  however,  exists  a  possibility  of  a 
lien  not  appearing  on  the  abstract  (Laughlin  v. 
Hawley,  9  Colo.  170)  but  which  should  disclose  itself 
on  the  clerk's  certificate.  There  may  also  exist  an 
unrecorded  miner's  lien.  (See  p.  236)  or  a  lien  in 
favor  of  the  State  on  an  audited  account  (If.  A.  S. 
§  1839),  or  for  fine  and  costs  in  a  criminal  case,  or 
against  the  surety  on  a  criminal  bond. — M.  A.  S. 
§§  1472,  1473. 

If  from  the  abstract  or  any  of  the  above  certifi- 
cates there  appears  to  have  been  a  judicial  sale,  pro- 
bate sale,  tax  or  other  official  sale,  the  whole  pro- 
ceedings from  the  summons,  petition,  assessment  or 
other  starting  point,  must  be  examined  as  to  their 
validity  at  all  stages,  up  to  their  consummation  by 
sheriff's  deed  or  otherwise. 


280  EXAMINATION  OP  TITLE. 

7. — PARTIES    IN    POSSESSION. 

If  parties  are  in  actual  possession,  claiming  ad- 
versely to  the  grantor,  or  claiming  under  him  as 
lessees,  their  possession  is  an  assertion  of  their 
claim,  whatever  it  may  be,  of  which  the  purchaser 
must  take  notice  at  his  peril. — Coffee  v.  Emigh,  15 
Colo.  184. 

8. CONCLUSION. DUTY    OF     COUNSEL. 

If  from  the  abstract,  or  from  any  of  the  cer- 
tificates, or  from  inspection  of  any  deed,  instrument 
or  record  in  the  chain  of  title;  or  as  the  result  of 
his  client's  inspection  and  survey  of  the  premises,  or 
from  any  other  source,  the  attorney  is  informed  of 
any  adverse  title,  or  of  any  outstanding  trust  or  ad- 
verse interest,  or  of  any  missing  conveyance  in  the 
chain  of  title,  or  of  any  serious  defect  in  the  body 
or  acknowledgment  of  any  instrument  of  such  a 
nature  as  to  invalidate  the  title — the  true  condition 
of  such  title  should  then,  with  due  secrecy,  be  ex- 
pressed to  the  client.  And  when  the  attorney  has 
satisfied  his  own  mind  upon  all  such  questions  of 
law  as  may  have  arisen  during  the  course  of  his 
examination,  the  client  has  a  right  to  fcbe  advised 
of  all  points  which  remain  in  doubt,  and  of  any 
contingencies  which  may  threaten  the  quiet  enjoy- 
ment, or  would  obstruct  a  sale  of  the  premises;  and 
of  all  steps  which  if  presently  taken  may  avoid  such 
conditions  and  perfect  the  title,  so  that  the  true 
value  of  the  title  in  law  shall  be  represented  to  the 
client,  that  is,  the  intending  purchaser.  For  in  all 
cases  of  examination  of  title,  the  attorney  should  be 
selected,  or  at  least  assented  to,  by  the  purchaser, 
if  it  be  a  sale;  by  the  lender  of  money,  if  it  be  a  mort- 
gage; because  from  the  necessity  of  the  case,  he  acts 
in  the  interest  of  the  purchaser  and  of  the  lender, 
and  not  in  that  of  the  grantor  or  of  the  mortgagor; 
the  charge  for  his  examination  should  be  made 
against  the  same  side;  the  charge  for  the  convey- 
ance, on  the  other  hand,  is  by  custom  made  against 
the  vendor. 


ALIENS.  281 


ALIENS, 


Ownership  of  Patented  Title. 

The  right  of  aliens,  resident  or  non-resident,  to 
acquire  title  to  patented  property,  depends  upon  the 
local  legislation  which  in  general  fully  provides  for 
such  ownership.  The  Colorado  Statute  (M.  A.  S.  ch. 
3,  and  art.  2,  sec.  27,  of  the  Constitution)  allows 
ownership  by  either  resident  or  non-resident  aliens. 

A  patent  to  the  use  of  an  alien  may  not  be  at- 
tacked except  by  direct  governmental  inquisition. — 
Justice  Co.  v.  Lee,  21  Colo.  260. 

Ownership  of  Possessory  Title. 

The  Mining  Acts  throw  open  the  public  domain 
to  citizens  only  and  to  those  who  have  declared 
their  intentions  to  become  citizens. — A.  C.  §  2319. 

It  would  seem  from  their  language  that  an 
alien  could  not  locate  a  claim  and  so  it  has  been  re- 
peatedly held.  And  if  he  could  not  locate,  his  hold- 
ing by  deed  and  perhaps  by  devise  or  descent  might 
be  questioned. 

But  the  matter  in  its  practical  importance  is 
controlled  by  the  rule  laid  down  in  late  opinions  of 
the  Federal  Supreme  Court,  Manuel  v.  Wulff.  152  U. 
S.  505;  McKinley  Co.  v.  Alaska  Co.  183  U.  S.  563,  that 
the  question  of  ownership  by  an  alien  is  a  matter 
between  himself  and  the  government  and  that  as 
long  as  the  Government  does  not  make  inquisition 
to  deprive  him  of  his  title,  or  become  a  party  to 
proceedings  to  perfect  the  title,  his  title  even  when 
he  claims  under  his  own  location  is  good  against 
all  the  world. 

Adverse  Claim  Cases. 

As  the  Government  rarely  initiates  such  pro- 
ceedings the  alien  in  contests  between  citizens  has 


282  ALIENS. 

therefore  the  same  standing  as  the  citizen  (Tornan- 
ses  v.  Melsing,  109  Fed.  710)  save  only  on  application 
for  patent  and  in  suits  supporting  adverse  claims,  in 
which  proceedings  the  Government  is  an  interested 
party  and  the  citizenship  of  the  parties  becomes  ma- 
terial. 

If  the  parties  to  such  suit  are  citizens  the  fact 
that  the  locator  was  an  alien  or  that  one  of  several 
locators  was  an  alien  or  that  intermediate  holders 
were  aliens  becomes  wholly  immaterial. — North  N. 
Co.  v.  Orient  Co.  9  M.  R.  530;  Providence  Co.  v. 
Burke,  57  Pac.  641;  Gorman  Co.  v.  Alexander,  51  N.- 
W.  346;  Billings  v.  Aspen  Co.  52  Fed.  250. 

The  Citizenship  of  the  Original  Locator  is  ma- 
terial only  where  he  continues  to  be  the  claimant  to 
the  time  of  the  institution  of  the  adverse  suit. 

Declaration  of  Intention. 

One  who  has  declared  his  intention  to  become 
a  citizen  of  the  United  States  may  locate,  enter  and 
patent  a  claim  the  same  as  a  citizen.  No  fixed  period 
of  previous  residence  is  required  before  making  such 
declaration. 

The  Act  of  Naturalization  Is  Retroactive,  so  that 
if  an  alien  has  located  a  claim  and  afterwards 
become  or  declared  his  intention  to  become 
naturalized,  his  location  is  good  from  its  original 
date. — Osterman  v.  Baldwin,  6  Wall.  122;  29  L.  D. 
164;  Lone  Jack  Co.  v.  Megginson,  82  Fed.  89. 

In  the  Manuel  case  a  citizen  had  located  and 
sold  to  an  alien.  The  alien  had  applied  for  patent 
and  was  adversed.  Pending  trial  he  became  nat- 
uralized, he  being  a  minor  emigrant  entitled  to  take 
out  papers  without  previous  declaration  of  inten- 
tion, and  the  Court  held  that  the  effect  of  naturaliza- 
tion was  retroactive,  made  his  claim  valid  and  de- 
feated the  adverse. 

Children  of  Aliens. 

There  is  a  common  impression  that  the  natural- 
ization of  the  father  operates  to  make  citizens  of  all 


ALIENS.  283 

his  children  who  came  to  the  United  States  under 
twenty-one  years  of  age;  but  this  is  the  case  only 
as  to  such  children  who  were  under  that  age  at  the 
date  of  the  father's  naturalization  papers. — R.  8. 
§  2172. 

An  Alien  May  Take  Title  by  Descent  and  hold 
the  claim  against  all  the  world  except  the  United 
States.— Billings  v.  Aspen  Co.  51  Fed.  338;  52 
Fed.  250;  Lohmann  v.  Helmer,  104  Fed.  178. 

Pleading  and  Proof  of  Citizenship. 

Except  in  adverse  claim  cases  it  need  be  neither 
alleged  or  proved. — Harris  v.  Kellogg,  49  Pac.  708; 
Buckley  v.  Fox,  67  Pac.  659.  It  may  be  proved  when 
essential  though  not  averred. — Altoona  Co.  v.  Inte- 
gral Co.  4^  Pac.  1047.  Where  no  issue  is  made  on  it, 
it  cannot  be  controverted. — Jackson  v.  Dines,  13 
Colo.  90;  Sherlock  v.  Leighton,  63  Pac.  934. 

Indirect  proof  by  circumstances  has  been  al- 
lowed— Strickley  v.  Hill,  62  Pac.  893,  and  in  Jantzen 
v.  Arizona  Co.  20  Pac.  "93,  the  broad  view  was  ex- 
pressed, and  as  we  have  always  believed  correctly 
expressed,  that  (in  judicial  as  distinguished  from 
departmental  proceedings)  a  presumption  exists  in 
favor  of  the  citizenship  of  a  resident  locator. 

The  point  of  alienage  must  be  raised  on  the  trial 
below.— O'Reilly  v.  Campbell,  116  U.  8.  420. 

Where  a  party  is  native  born  his  own  statement 
proves  his  citizenship.  Where  naturalization  or 
declaration  of  intention  is  in  issue  the  proper  proof 
is  the  producton  of  a  certified  copy  of  the  record, 
but  there  are  instances  where  this  strictness  is  not 
insisted  on. — Wood  v.  Aspen  Co.  36  Fed.  25;  Provi- 
dence Co.  v.  Burke,  57  Pac.  641. 

In  the  Land  Office  upon  application  for  patent 
and  upon  adverse  claim  the  proof  is  by  affidavit  and 
like  proof  is  held  good  in  the  suit  supporting  the 
adverse. — Hammer  v.  Garfteld  Co.  16  M.  R.  125; 
O'Reilly  v.  Campbell,  116  U.  S.  420. 


2X4  MEXICAN  GRANT. 

Citizenship  of  the  stockholders  of  an  American 
corporation  need  not  be  proved  and  issue  cannot  "be 
taken  on  this  point. — Doe  v.  Waterloo  Co.  70  Fed.  436. 

The  Federal  Alien  Act  of  March  3,  1887,  is  in 
force  in  the  Territories  only.  That  Act  (Sup. 
556)  forbids  aliens  who  have  not  declared  their 
intentions,  to  hold  any  real  estate  patented  or 
possessory,  except  by  inheritance  or  as  creditors 
buying  to  protect  debts.  It  applied  also  to  cor- 
porations where  over  20  per  cent,  of  their  stock 
was  held  by  aliens;  but  this  restriction  was  removed 
by  the  Act  of  March  2,  1897,  29  St.  L.  618,  so  that  now. 
a  corporation  not  alien  may  purchase  from  the  Gov- 
ernment irrespective  of  the  citizenship  of  its  stock- 
holders.— 28  L.  D.  118.  By  the  same  amendment  it 
allows  aliens  to  acquire  and  hold  by  purchase,  pos- 
sessory as  well  as  patented  mining  claims.  Its  lan- 
guage is  so  vague  that  it  cannot  be  told  without  ju- 
dicial construction  whether  it  would  allow  of  the  orig- 
inal location  of  a  mining  claim  by.  an  alien.  Except 
as  affected  by  the  Alien  Act  or  by  local  statute, 
Chinese  or  other  aliens  can  work  under  lease  from  a 
citizen.— Ah  Kle  v.  McLean,  32  Pac.  200. 


MEXICAN  GRANT. 


The  three  cessions  of  Mexican  territory  to  the 
United  States  were  by  the  treaty  of  Guadaloupe 
Hidalgo,  Feb.  2,  1848,  the  Gadsden  purchase  in  1853 
and  the  grant  by  the  State  of  Texas  in  1850,  of  all 
its  claims  to  territory  outside  of  its  present  boun- 
daries. It  had  been  the  policy  of  the  Spanish  and 
Mexican  governments  to  allow  the  governors  of  the 
outlying  provinces  to  pass  title  to  large  tracts  for 
colonization  purposes  but  limited  to  eleven  square 
leagues.  Such  private  cessions  of  land  are  recognized 
by  all  the  treaties  as  well  as  by  the  modern  law  of 
^conquest,  and  they  have  been  variously  confirmed 


MEXICAN  GRANT.  2S5 

by  special  Acts,  by  patents,  or  by  the  adjudication  of 
the  Court  of  Land  Claims.  Many  of  the  so-called 
grants  were  of  an  inchoate  character — what  we  would 
call  licenses  or  equities  not  ripened  into  grants 
proper.  But  whatever  their  status  the  U.  S.  is  under- 
stood to  be  bound  as  fully  as  was  the  original  gov- 
ernment. 

In  Moore  v.  Smaw,  12  M.  R.  418,  where  the  sub- 
ject of  mineral  rights  in  grants  was  fully  discussed, 
it  was  held  that  no  interest  in  minerals  passed  by 
the  grant  of  the  Mexican  government  without  express 
words  designating  them  and  that  at  the  date  of  the 
cession  of  California  to  the  United  States  they  were 
the  property  of  the  Mexican  government  and  passed 
by  the  cession  to  the  United  States;  but  that  a  pat- 
ent from  the  United  States,  in  confirmation  of  such 
grant,  making  no  reservation  of  the  minerals,  in- 
vested the  patentee  with  the  ownership  of  the  min- 
erals. 

In  Fremont  v.  U.  S.  17  How.  060,  it  was  was  held 
that  the  discovery  of  gold  or  silver  did  not,  under  the 
mining  laws  of  Mexico,  destroy  the  title  of  the  in- 
dividual holding  the  grant  to  the  surface,  without 
passing  upon  the  rights  of  the  government  or  of  the 
discoverer,  in  such  minerals. 

The  Moore  case  followed  without  qualification  in 
Fremont  v.  Seals,  11  M.  R.  632,  and  Ah  He  v.  Crip- 
pen,  JO  M.  R.  367,  remained  for  many  years  unques- 
tioned, but  in  U.  8.  v.  San  Pedro  Co.  17  Pac.  337,  the 
Supreme  Court  of  New  Mexico  held  that  a  confirma- 
tion of  the  grant  by  patent  or  statute  did  not  pass 
the  minerals.  The  facts  in  this  case  for  the  mineral 
claimant  were  very  strong,  as  the  mines  on  that 
grant  had  been,  prior  to  the  cession,  of  known  value 
and  denounceable,  if  not  actually  denounced  under 
Mexican  law. 

A  Mexican  grant  seems  to  be  inadmissible  n.s 
proof  of  title  till  confirmed  by  Act  of  Congress. — 
Astiazaran  v.  Santa  Rita  Co.  20  Pac.  189;  148  U.  S. 
80.  But  confirmation  may  be  complete  without  pat- 
ent.— Shaw  v.  Kellogg,  170  U.  S.  312. 


286  CORPORATIONS. 

A  raining  location  may  be  made  on  an  uncon- 
firmed Mexican  grant.  Such  land  is  not  reserved 
against  entry. — Lockhart  v.  Wills,  54  Pac.  336;  Aff'd 
181  U.  8.  516. 

In  Gildersleeve  v.  New  Mexico  Co.  a  confirmed 
Mexican  grant  was  upheld  on  the  ground  of  laches 
of  the  complainant. — 161  U.  8.  573. 

The  Act  of  1891  creating  the  Court  of  Land 
Claims  (20  8tat.  L.  860),  contains  a  special  reserva- 
tion of  mineral  titles  which  cannot  be  safely  ex- 
pressed without  quoting  its  exact  language,  to  wit: 
"No  allowance  or  confirmation  of  any  claim  shall 
confer  any  right  or  title  to  any  gold,  silver,  or  quicksilver 
mines  or  minerals  of  the  same,  unless  the  grant  claimed 
effected  the  donation  or  sale  of  such  mines  or  minerals  to 
the  grantee,  or  unless  such  grantee  has  become  otherwise 
entitled  thereto  in  law  or  in  equity ;  but  all  such  mines 
and  minerals  shall  remain  the  property  of  the  United  States, 
with  the  right  of  working  the  same,  which  fact  shall  be 
stated  in  all  patents  issued  under  this  act.  But  no  such 
mine  shall  be  worked  on  any  property  confirmed  under  this 
act  without  the  consent  of  the  owner  of  such  property  until 
specially  authorized  thereto  by  an  act  of  Congress  hereafter 
passed." 


MINING  CORPOBATIONS,  DOMESTIC. 


A    Corporation    is    an    "association    of    persons" 

within  the  meaning  of  the  U.  S.  Mining  Acts. — U.  8. 
v.  Trinidad  Co.  137  U.  8.  160. 

*  Any  three  or  more  persons  are  authorized  to 
file  their  certificate  of  incorporation  under  the  Colo- 
rado Incorporation  Act  (M.  A.  8.  §  472-635),  for  pur- 

*These  details  vary  in  the  several  States  and  Terri- 
tories, but  each  allows  of  incorporation  upon  practically  the 
same  terms  and  upon  compliance  with  substantially  the 
same  forms  as  in  Colorado.  To  state  each  instance  where 
they  vary  would  be  beyond  the  plan  and  intended  size  of 
this  work.  Nor  is  it  advisable  even  where  the  most  com- 
plete local  forms  and  directions  are  given  in  any  book  to 
attempt  to  write  any  such  document  as  a  corporate  charter 
without  professional  counsel. 


CORPORATIONS.  287 

poses  of  mining  or  construction  of  ditches  or  flumes; 
to  run.  tunnels;  or  in  fact  "for  any  lawful  purpose," 
but  there,  are  special  provisions  in  the  corporation 
chapter  which  refer  only  to  mining,  ore  reduction, 
and  tunneling  companies — and  other  special  provi- 
sions concerning  ditch  and  flume  companies.  Pipe 
line  companies  (1891,  p.  94)  are  required  to  state  in 
their  articles  the  route  of  their  proposed  line.  For 
filing  fees,  see  p.  298. 

Number  of  Directors. 

M.  A.  S.  §  585  is  a  special  section  providing  that 
the  number  of  directors  of  a  mining  company  shall 
not  be  less  than  three  nor  more  than  nine. 

The  Par  Value  of  Shares  cannot  be  less  than  one 
dollar  nor  exceed  one  hundred  dollars,  and  the  shares 
may  be  issued  payable  in  instalments. — §  480. 
Rights  of  Stockholders. 

Any  stockholder  has  a  right  to  inspect  the  books 
of  the  corporation. — §  488.  And  the  holders  of  fifteen 
per  cent,  may  demand  a  written  statement. — §  507. 
But  there  is  no  Statute  allowing  stockholders  the 
right  to  examine  the  mine. 

The  Term  of  Existence  cannot  exceed  twenty 
years. — §  413.  But  may  be  revived. — Acts  1899,  p. 
163. 

Stock  Paid  in  Lands. 

Any  such  company  may  issue  stock  in  -payment 
for  mines,  such  stock  to  be  treated  as  paid-up  stock. 
— §  490;  582. 

Where  stock  is  issued  upon  excessive  overvalua- 
tion the  holder  may  be  held  personally  liable. — Kelly 
v.  Fourth  Co.  53  Pac.  959;  compare  DuPont  v.  Tilden, 
42  Fed.  87. 

No  personal  liability  is  imposed  upon  stockhold- 
ers for  debts,  except  to  the  extent  of  unpaid  stock 
held  by  them.— §  486;  497.  Directors  and  officers  be- 
come liable  for  failure  to  make  and  file  an  annual 
report  (Acts  1901,  p.  125),  or  declaring  fraudulent 
dividends.— §  492. 


288  CORPORATIONS. 

Annual  Meetings  of  Stockholders  are  provided  for 
by  Statute,  the  By-Laws  fixing  the  time  and  place. 
The  Colorado  Act  (1895,  p.  150}  requires  notice  to  be 
published  not  less  than  ten  days  previous  to  the 
meeting,  in  a  newspaper  published  where  the  prin- 
cipal office  is  kept,  and  thirty  days'  notice  to  each 
stockholder. 

Mortgage. 

A  mining  company  is  forbidden  to  mortgage  its 
property  except  by  majority  vote  of  stockholders. — 
3  M.  A.  8.  §  481. 

Corporate  Deed. 

The  seal  of  the  Company  is  prima  facie  evidence 
that  it  was  affixed  by  corporate  authority. — Union 
Co.  v.  Bank,  2  Colo.  226.  But  to  render  a  conveyance 
of  real  property  unimpeachable  it  should  be  author- 
ized by  the  Board  of  Directors,  preceded  by  action 
of  the  stockholders  at  a  meeting  called  for  that 
purpose. 

Seal. 

A  corporation  may  be  bound  by  a  scroll  seal. — 
G.  V.  B.  Co.  v.  Bank,  95  Fed.  23.  And  may  adopt 
new  seal  when  its  president  withholds  the  old  one. 
—Socorro  Co.  v.  Preston,  .'/fl  N.  Y.  8.  1040. 

ARTICLES   OF   INCORPORATION GOLD   MINING    COMPANY. 

WKKKEA.S..  Franklin  R.  Carpenter,  Elbert  F.  Fitzgerald 
and  Arthur  B.  Frcnzel,  all  of  the  City  and  County  of  Denver, 
State  of  Colorado,  have  associated  themselves  together  for 
purposes  of  incorporation  under  the  General  Incorporation 
Acts  of  the  State  of  Colorado,  they  do  therefore  make, 
sign  and  acknowledge  these  duplicate  certificates  in  writing, 
which  when  filed,  shall  constitute  the  Articles  of  Incorpora- 
tion of  The  Yellow  Bug  Mining  Company. 

ARTICLE  1.  The  name  of  said  company  shall  be  The 
Yellow  Bug  Mining  Company. 

ARTICLE  2.  The  objects  for  which  said  company  is 
created  are  to  acquire,  hold,  work,  and  operate  placer  gold 
mines  and  lodes  of  gold  bearing  ore  in  the  County  of  San 
Miguel  in  said  State  of  Colorado.  To  acquire,  own  and  use 
water,  water  rights  and  mills  incident  to  the  treatment 
of  gold  bearing  earth  and  gold  bearing  ores,  and  to  do  all 
things  incident  to  the  general  business  of  gold  mining. 


CORPORATIONS.  289 

ARTICLE  3.  The  term  of  existence  of  said  company 
shall  be  twenty  years. 

ARTICLE  4.  The  capital  stock  of  said  company  shall 
be  one  hundred  thousand  dollars  divided  into  one  hundred 
thousand  shares  of  one  dollar  each. 

ARTICLE  5.  The  number  of  directors  of  said  company 
shall  be  three,  and  the  names  of  those  who  shall  manage 
the  affairs  of  the  company  for  the  first  year  of  its  exist- 
ence are  Franklin  R.  Carpenter,  Elbert  F.  Fitzgerald  and  Ar- 
thur B.  Frenzel. 

ARTICLE  6.  The  principal  office  of  said  company  shall 
be  kept  at  Placerville  in  said  County  and  the  principal  busi- 
ness of  said  company  shall  be  carried  on  in  said  County  of 
San  Afiguel. 

ARTICLE  7.  The  stock  of  said  company  shall  be  non- 
assessable. 

ARTICLE  8.  The  board  of  directors  shall  have  power 
to  make  such  prudential  by-laws  as  they  may  deem  proper 
for  the  management  of  the  affairs  of  the  company,  not  in- 
consistent with  the  laws  of  this  State,  for  the  purpose  of 
carrying  on  all  kinds  of  business  within  the  objects  and  pur- 
poses of  such  company. 

In  witness  whereof,  the  said  incorporators  have  here- 
unto set  their  hands  and  seals  this  first  day  of  January,  A. 
D.  1903. 

FRANKLIN  R.  CARPENTER.  [SEAL.] 
ELBERT  P.  FITZGERALD.  [SEAL.] 
ARTHUR  B.  FRENZEL.  [SEAL.] 

STATE  OF  COLORADO,  City  and  County  of  Denver:  ss. 

I,  Joseph  K.  Bozard,  a  notary  public  in  and  for  said 
County,  do  hereby  certify  that  Franklin  R.  Carpenter,  El- 
bert  F.  Fitzgerald  and  Arthur  B.  Frenzel,  who  are  personally 
known  to  me  to  be  the  same  persons  described  in,  and  who 
executed  the  within  duplicate  Articles  of  Incorporation,  ap- 
peared before  me  this  day  and  personally  acknowledged 
that  they  signed,  sealed  and  delivered  the  same  as  their  free 
and  voluntary  act  and  deed. 

Witness  my  hand  and  notarial  seal  this  first  day  of 
January,  A.  D.  1903.  Joseph  K.  Bozard, 

[SEAL.]  Notary  Public. 

The  first  seven  articles  in  the  above  form  con- 
tain all  the  statutory  requirements.  Article  8  in  re- 
gard to  the  by-laws,  is  necessary  if  it  is  intended 
that  the  directors  instead  of  the  stockholders,  shall 
make  the  by-laws.— M.  A.  8.  §  484. 

One  of  the  said  duplicates  to  be  filed  with  the 
Recorder  of  the  proper  county,  and  one  with  the 
Secretary  of  State,  and  if  the  business  is  to  be  car- 
lo 


290  CORPORATIONS. 

ried  on  in  more  than  one  county,  the  word  duplicate 
should  not  be  used,  as  there  must  be  an  original  for 
each  county  as  well  as  for  the  Secretary  of  State. 

Assessable  or  Non-Assessable. 

The  chapter  concerning  corporations  provides 
for  assessments  upon  shares,  where,  by  the  charter 
the  stock  is  made  assessable,  and  the  statute  re- 
quires that  whether  the  stock  shall  be  assessable  or 
non-assessable  shall  be  stated  in  the  above  articles; 
and  each  certificate  of  stock  "shall  have  plainly 
printed  on  the  face  thereof  the  word  'assessable'  or 
'non-assessable'  as  the  case  may  be." 

ARTICLES    OF    INCORPORATION SILVER    MINING    CO. 

Articles  1  and  2  of  a  Silver  Mining  Company 
may  read: 

ARTICLE  1.  The  name  of  said  company  shall  be  The 
Fiat  Silver  Mining  Company. 

ARTICLE  2.  The  objects  for  which  said  company  is 
created  are  to  acquire,  hold,  work,  and  operate  mines  of 
silver  bearing  ore  and  its  associated  ores,  in  the  County  of 
Mineral,  in  the  State  of  Colorado,  and  to  sell,  work,  mill, 
reduce  or  treat  the  product  of  such  mines  and  do  all  things 
incident  to  the  general  business  of  mining. 

Where  it  is  'desired  to  transact  part  of  the  busi- 
ness out  of  the  State  the  certificate  must  so  state: 
§  493. 

ARTICLE  9.  A  part  of  the  business  of  said  Company 
shall  be  carried  on  in  Ecltley,  County  of  Luzerne,  Common- 
wealth of  Pennsylvania.,  and  the  principal  office  of  said  Com- 
pany out  of  the  State  shall  be  at  said  Ecleley,  at  which 
office  meetings  of  Directors  may  be  held. 

Where,  after  organization  complete,  a  company 
desires  to  extend  its  business  into  other  counties,  it 
may  do  so  without,  amending  charter,  by  filing  certi- 
fied copy  from  the  Secretary  of  State's  office  with  the 
Recorder  of  the  new  county. — §  4^4- 

On  filing  the  articles  a  copy  certified  by  the  Sec- 
retary of  State  should  be  procured  and  preserved  as 
the  legal  voucher  for  corporate  existence:  at  the 
same  time  the  Secretary  of  State  issues  his  "Certifi- 
cate of  Authority"  under  the  Act  of  1901,  and,  there- 


CORPORATIONS.  291 

upon,  should  be  called  the  organization  meeting,  to 
be  attended  by  a  majority  of  the  original  Board  of 
Directors  (by  custom  the  same  persons  as  the  in- 
corporators,  though  not  necessarily  so).  This  organ- 
ization meeting,  so-called,  is  really  the  first  regular 
meeting  of  the  Board  of  Directors,  and  at  such 
meeting  the  articles  as  filed  should  be  formally  ac- 
cepted. 

ORGANIZATION     MEETING. 

Record  of  first  meeting  of  the  Board  of  Directors 
of  The  Yellow  Bug  Mining  Company,  at  Placerville,  Colo- 
rado, January  7S  1903. 

At  a  meeting  of  the  persons  named  in  the  articles 
of  said  Company,  there  being  present  Franklin  R.  Carpenter, 
Eloert  F.  Fitzgerald  and  Arthur  B.  Frenzel: 

On  motion  Franklin  R.  Carpenter  was  elected  chairman 
and  Arthur  B.  Frenzel,,  secretary  pro  tern. 

On  motion  the  Articles  of  Incorporation  as  filed  in 
the  office  of  the  Secretary  of  State  and  in  the  office  of  the 
County  Clerk  of  San  Miguel  County,  were  accepted  as  the 
articles  of  incorporation,  or  charter  of  said  company. 

On  ballot  taken  Franklin  R.  Carpenter  was  elected  pres- 
ident of  the  company,  Elbert  F.  Fitzgerald  was  elected  vice- 
president,  Arthur  B.  Frcnzel  was  elected  treasurer,  Albert 
B.  Roeder  was  elected  secretary,  and  Thomas  Cornish  was 
elected  superintendent. 

On  motion  the  following  by-laws  were  adopted  : 

*BY-LAWS. 

I OFFICERS. 

The  officers  of  this  company  shall  consist  of  a  Pres- 
ident, Vice-President,  Secretary,  Treasurer,  and  Superin- 
tendent, who  shall  be  chosen  by  the  Directors  at  their  first 
meeting  following  the  annual  meeting  of  the  stockholders 
in  each  year.  They  shall  be  elected  from  the  Board  of  Di- 
rectors, except  the  Secretary  and  Superintendent,  who  may 
or  may  not  be  Directors.  Said  officers  shall  hold  their  re- 
spective offices  until  their  successors  are  appointed  and  en- 
ter upon  the  duties  of  their  offices.  Vacancies  among  the 
Directors  may  be  filled  at  any  meeting  of  the  Board  of 
Directors,  by  ballot. 

II DUTIES    OF   PRESIDENT. 

It  shall  be  the  duty  of  the  President  to  preside  at  all 
meetings  of  the  Directors,  and  to  sign  all  bonds,  deeds, 

*The  above  by-laws  will  be  found,  in  general,  sufficient ; 
but  each  by-law  should  be  reviewed  and  such  changes  made 
as  may  be  needed  to  cover  special  plans  of  the  incorporators. 


292  CORPORATIONS. 

agreements  or  other  instruments  in  writing,  made  or  en- 
tered into  by  or  on  behalf  of  the  corporation  ;  to  sign  all 
certificates  of  stock,  and  all  orders  for  money  on  the  Treas- 
urer, and  in  general,  perform  all  acts  incident  to  his  office. 

Ill DUTIES   OF  VICE-PRESIDENT. 

It  shall  be  the  duty  of  the  Vice-President  to  perform 
all  such  functions  as  belong  to  the  office  of  President  in 
the  absence  of  the  President. 

IV DUTIES    OF    SECRETARY. 

The  Secretary  shall  give  due  notice  of  all  meetings 
of  stockholders,  and  of  the  Board  of  Directors ;  shall  pre- 
pare and  keep  proper  books  of  record  and  of  account  for  the 
business  of  the  company,  and  such  other  books  as  may  be 
required  by  law  or  the  Directors  may  prescribe.  He  shall 
countersign  and  register  all  certificates  of  stock,  and  other 
documents  requiring  the  signature  of  the  President,  attach- 
ing the  corporate  seal  of  the  company  to  all  instruments 
requiring  seal,  and  perform  all  such  other  duties  as  are 
incident  to  his  office.  A  suitable  compensation,  to  be  de- 
termined by  the  Directors,  shall  be  allowed  the  Secretary 
for  his  services.  He  shall  be  the  custodian  of  the  corporate 
seal. 

V DUTIES    OF   TREASURER. 

The  Treasurer  shall  be  the  custodian  of  the  funds 
until  the  same  be  disposed  of  by  order  of  the  Board  of 
Directors.  He  shall  give  bond  satisfactory  to  the  Board 
of  Directors,  for  the  faithful  performance  of  his  duties. 
No  money  shall  be  paid  out  by  the  Treasurer  except  on  the 
order  of  the  President  or  Superintendent,  countersigned  by 
the  Secretary. 

VI DUTIES    OF   SUPERINTENDENT. 

The  Superintendent  shall  have  control  of  the  work- 
ing and  developing  of  the  company's  mining  property  ;  shall 
report  to  the  Board  of  Directors,  for  their  approval,  all 
contemplated  work,  and  after  such  approval,  shall  have  full 
power  to  contract  said  work.  All  expenses  incurred  by 
the  Superintendent  in  the  working  and  management  or 
the  company's  property  shall  be  borne  by  the  company.  A 
suitable  qompensation,  to  be  determined  by  the  Board  of 
Directors,  shall  be  allowed  him  for  his  services. 

VII BOARD   OF  DIRECTORS. 

The  Board  of  Directors  shall  consist  of  three  mem- 
bers, always  including  the  President,  Vice-President  and 
Treasurer.  It  shall  be  the  duty  of  the  Board  to  exercise 
general  supervision  over  the  affairs  of  the  company ;  to 
receive  and  pass  upon  the  reports  of  the  Secretary,  Treas- 
urer and  Superintendent,  to  audit  all  bills  and  accounts 


CORPORATIONS.  293 

against  the  company,  and  to  direct  the   Secretary  in  corre- 
spondence. 

VIII ANNUAL    REPORTS. 

The  Board  of  Directors  shall  cause  its  officers  to  make 
a  full  exhibit  of  their  several  -departments  and  to  prepare 
reports  for  submission  to  the  annual  meeting  of  stockhold- 
ers. 

IX DIRECTORS'   MEETING.S. 

The  Board  of  Directors  shall  meet  at  such  times  as 
they  shall  from  time  to  time  determine,  and  a  meeting  of 
the  Board  may  at  any  time  be  called  by  the  President  or 
any  two  members  of  the  Board  by  causing  personal  notice 
to  be  served  upon  the  Directors  at  least  one  day  before 
the  date  of  such  proposed  meeting.  Two  of  the  Directors 
shall  constitute  a  quorum  for  the  transaction  of  business. 
All  directors  and  officers  must  be  stockholders. 

X STOCKHOLDERS'    MEETINGS. 

The  first  annual  meeting  of  the  -company  shall  be 
held  at  the  office  of  the  company  in  Placerville,  at  10 
o'clock  A.  M.,  on  the  second  Tuesday  in  January,  A.  D.  190!i, 
and  on  the  same  Tuesday  of  each  succeeding  year.  If 
omitted,  the  Directors  shall  hold  over  until  their  successors 
are  appointed.  Special  meetings  may  be  called  by  the 
Board  of  Directors,  or  by  one-tenth  in  amount  of  all  the 
stock  held.  Such  published  notice  and  personal  notice  by 
mail  as  may  be  required  by  law,  shall  be  given  of  each 
meeting  (except  adjourned  meetings)  and  the  object  of  the 
meeting  shall  be  stated  in  the  notice.  Stockholders  may 
be  represented  by  proxies,  which  must  be  exhibited  for  In- 
spection to  the  meeting. — See  Act  of  1895,  p.  150,  and  M.  A. 
8.  Sec.  585. 

XI CERTIFICATES    OF    SHARES. 

The  subscribers  to  the  capital  stock  of  this  company 
shall  be  entitled  to  certificates  of  their  shares,  duly  signed 
by  the  President  and  countersigned  by  the  Secretary.  The 
certificates  of  stock  shall  be  numbered  and  registered  as 
they  are  issued.  Transfers  of  stock  shall  only  be  made  on- 
the  books  of  the  company,  either  in  person  or  by  attorney, 
and  the  possession  of  stock  shall  not  be  regarded  as  evi- 
dence of  ownership  of  the  same,  unless  it  appears  upon 
the  stock  books  of  the  company  -  that  said  certificate  was 
Issued  or  duly  transferred  to  the  holder  of  the  same. 

xn — DEBTS. 

No  debt  shall  be  contracted  against  the  company  ex- 
cept by  order  of  the  Board  of  Directors. 

XIII DIVIDENDS. 

Dividends  shall  be  made  not  in  excess  of  the  net  earn- 
ings of  the  company  at  the  close  of  every  fiscal  year,  which 


294  CORPORATIONS. 

shall  be  on  the  thirty-first  day  of  December  of  every  year  ; 
or  oftener  as  the  Board  of  Directors  may  see  fit. 

XIV CORPORATE   SEAL. 

This  company  adopts  as  its  corporate  seal,  the  device 
described  as  follows  :  A  pick  and  shovel  crossed,  surrounded 
by  the  name  of  the  company. 

XV AMENDMENTS. 

These  by-laws  may  be  changed,  amended  or  revoked 
at  any  time,  by  a  two-thirds  vote  of  the  Board  of  Directors. 

The  charter  and  by-laws  being  adopted,  and  the 
officers  elected,  the  organization  of  the  corporation 
is  complete,  and  the  minutes  proceed  to  note  busi- 
ness as  it  may  be  transacted. 

Reports  and  Certificates  Required. 

After  payment  of  the  last  instalment  of  capital 
stock  the  President  and  a  majority  of  the  Board  of 
Directors  are  required  by  Sec.  487  to  record  a  certifi- 
cate in  the  office  of  the  Secretary  of  State  as  follows: 

CERTIFICATE    OF    FULL    PAID    STOCK. 

STATE  OF  COLORADO,  County  of  San  Miguel:  ss. 

The  undersigned,  Frrnklin  R.  Carpenter,  President, 
and  Elbert  F.  Fitzgerald,  Director,  constituting  a  majority 
of  the  Directors  of  The  Yelloiv  *Bug  Mining  Company,  do 
hereby  certify,  in  accordance  with  Section  487  of  Mills'  An- 
notated Statutes  of  said  State  that  the  amount  of  the  cap- 
ital stock  of  said  company,  as  fixed  and  limited  by  its  Arti- 
cles of  Incorporation,  is  $100,000,  and  that  the  whole  amount 
of  said  stock  has  been  paid  in.  That  $10,000  thereof  was 
paid  in  cash  and  $90,000  was  paid  for  the  purchase  of 
property. 

Witness  our  hands  this  5th  day  of  February,  A.  D. 
I903-  FRANKLIN  R.  CARPENTER,,  President. 

ELBERT  F.   FITZGERALD,.  Director. 

STATE  OF  COLORADO,  County  of  San  Miguel:  ss. 

Franklin  R.  Carpenter  and  Elbert  F.  Fitzgerald,  being 
duly  sworn,  say  that  they  are  the  officers  named  in  the  fore- 
going certificate,  and  constitute  a  majority  of  the  Board  of 
Directors  of  said  company  ;  that  they  have  heard  said  cer- 
tificate read  and  know  the  contents  thereof,  and  that  the 
matters  and  things  therein  stated  are  correct  and  true. 

FRANKLIN  R.  CARPENTER, 
ELBERT  F.  FITZGERALD, 

Sworn  and  subscribed  before  me  this  fifth  day  of  Feb- 
ruary, A.  D.  1903.  Curtis  L  Greenwood, 

[SEAL.]  Notary  Public. 


CORPORATIONS.  295 

A  copy  of  said  certificate  is  also  to  be  filed  and 
recorded  in  the  Recorder's  office  of  each  county  where 
business  is  done. 

It  is  held  that  when  the  capital  stock  is  fully 
paid  up  it  is  the  duty  of  the  officers  to  make  and 
record  such  certificate. — Austin  v.  Berlin,  13  Colo. 
200.  Since  the  Act  of  1901,  however,  the  personal 
liability  avoided  by  such  certificate,  is  no  longer 
granted. 

Annual  Report. 

By  Act  of  1901  (p.  121)  an  annual  report  is  re- 
quired to  be  filed  in  the  office  of  the  Secretary  of 
State  within  60  days  from  January  1st.  The  Penalty 
for  failure  is  personal  liability  of  all  officers  and 
directors.  The  Act  requires  information  and  items 
in  detail  never  previously  exacted  and  while  the 
following  form  is  for  its  own  facts  in  strict  compli- 
ance with  the  Statute,  the  Act  is  so  worded  that 
its  terms  must  be  studied  with  reference  to  the  status 
of  each  corporation  when  about  to  comply  or  attempt 
to  comply  with  its  obscure  and  inquisitorial  demands. 

ANNUAL  REPORT  OF  MINING  CORPORATION. 

In  compliance  with  the  terms  of  Section  11,  of  an  Act 
of  the  General  Assembly  of  the  State  of  Colorado,  approved 
April  6,  1901,  The  Rough  Rider  Mining  Company  makes  and 
files  this  Annual  Report,  and  says : 

1.  The  names  of  its  officers  and  Directors  and  their 
several  places  of  residence,  together  with  the  street  or  busi- 
ness address  of  such  officers  and  Directors,  are  as  follows  : 

President  and  Director,  E.  H.  Cook,  of  Boulder,  Colo- 
rado. 

Vice-President  and  Director,  Geo.  W.  Kretzinger,  of 
1036  Monadnock  Block,  Chicago,  111. 

Treasurer  and  Director,  B.  W.  Begeer,  of  1347  Lafay- 
ette street,  Denver,  Colorado. 

Secretary,  Wm.  Byrd  Page,  of  No.  932  Equitable  Build- 
ing, Denver,  Colorado. 

Superintendent  or  Manager,  Josiah  Winchester,  of  No. 
708,  same  building. 

2.  The  amount  of  its  capital  stock  as  fixed  and  deter- 
mined by   its   Articles  of    Incorporation     (and    amendments 
thereto)   is  $100,000. 

3.  The  proportion  of  such  capital  stock  actually  paid 
in  is  $100,000,  of  which  $25,000  was  paid  in  cash,  and  $75,- 
000  was  paid  by  purchase  of  mining  property. 


296  CORPORATIONS. 

4.  The  amount   of   the   indebtedness   of  said   corpora- 
tion at  the  date  of  filing  this  report  is  $5,000. 

5.  Said  Corporation  is  now  engaged  in  the  active  oper- 
ation of  its  business  within  the  State  of  Colorado. 

6.  It.  has  no   personal   property  except  tools,   supplies 
and  office  furniture.      It  has  twenty  men  on  pay-roll,  and  is 
working  a  producing  mine  with  no  lien  encumbrance. 

7.  The     property    of     said     Corporation    within     this 
State  is  located  in  the  County  of  Park,  and  consists  of  two 
Lode   Mining  Claims,   of  which   the  Roosevelt   is   held   under 
letters   patent  of  the  United  States,   and  the  Colonel   Wood 
is  held  by  possessory  right  on  the  public  domain. 

8.  The  amount  of  wrork  done  and  improvements  made 
on  said  property  since  the  time  of  filing  its  last  annual  re- 
port  is    $20,000,    expended    in   new    hoisting   plant    and     the 
development  and  working  of   its  mines. 

Witness  the  corporate  name  and  seal  of  said  Company, 
at  the  hand  of  its  President,  this  5th  day  of  January,  A.  D. 
1903. 

THE  ROUGH  RIDER  MINING  COMPANY, 

By  E.  H.  COOK,  President. 
Attest : 
WM.  BYRD  PAGE,  Secretary. 

STATE  OP  COLORADO,  City  and  County  of  Denver:  ss. 

Before  me,  the  subscriber,  a  Notary  Public,  in  and  for 
said  County,  personally  appeared  E.  H.  Cook,  President,  and 
Wm.  Byrd  Page,  Secretary  of  The  Rouyh  Rider  Mining  Com- 
pany, who  being  duly  sworn,  each  for  himself,  saith  that  he 
has  read  the  foregoing  Report  signed  by  said  E.  H.  Cook, 
President,  and  that  the  same  and  the  matters  and  things 
therein  stated  are  true. 

E.  II.  COOK, 

WM.     BYRD    PAGE. 

Sworn  and  subscribed  before  me,  this  5th  day  of  Jan- 
uary, A.  D.  1903. 

Joseyli  K.  Bozard, 
[SEAL.]  Notary  Public. 

Other  details  are  required  for  ditch  companies 
and  still  others  for  coal  mining  corporations. 

Such  report  must  be  signed  by  the  President 
and  verified  by  the  President  and  Secretary  and  the 
corporate  seal  attached. — Acts  1901,  p.  124. 

In  either  form,  where  the  stock  has  been  paid 
up  by  purchase  of  the  mine,  the  certificate  must  so 
state.— M.  A.  S.  §  490. 


CORPORATIONS.  297 

ARTICLES    OF     INCORPORATION DITCH    COMPANY. 

Preamble  same  as  page  288. 

ARTICLE  1.  The  name  of  said  company  shall  be  "The 
Deluge  Ditch  Company." 

ARTICLE  2.  The  objects  for  which  said  company  is 
created  are  to  construct  a  ditch,  and  keep  and  maintain  the 
same  from  the  stream  known  as  Roaring  Fork  of  the  Grand, 
tapping  such  stream  at  a  point  about  one-quarter  mile  above 
the  Jones  ranch,  and  about  one  hundred  yards  below  Eagle 
Cliff,  and  fifty  feet  northeast  from  lone  pine  tree  blazed 
D.  D. ;  the  line  of  said  ditch  running  thence  (give  course  and 
distance  by  survey  if  possible,  so  as  to  describe  "the  line 
of  said  ditch  as  near  as  may  be.")  The  water  of  said  ditch 
to  be  used  and  sold  for  placer  mining. — Acts  1891,  p.  97. 

ARTICLE  7.  The  stock  of  said  company  shall  be  as- 
sessable, upon  majority  vote  at  stockholders'  meeting,  as  re- 
quired by  law. 

ARTICLES  3,  4,  5,  0,  8  and  9  and  acknowledgment 
same  form  as  on  page  289. 

The  stream  tapped,  head  of  ditch,  line  of  ditch 
and  intended  use  of  water  must  always  be  stated; 
also  the  location  of  the  reservoir  if  a  reservoir  is  to 
be  constructed. 

Any  surplus  water  they  are  compelled  to  keep 
for  sale,  at  rates  fixed  by  County  Commissioners. — 
§  510. 

SMELTING    AND    ORE-SAMPLING    COMPANIES. 

The  following  Articles  stating  the  purposes  of 
organization  are  taken  from  records  filed  by  operat- 
ing companies.  The  other  Articles  for  such  or  other 
like  companies  should  be  substantially  in  the  above 
form,  always  observing  that  the  article  (No.  7)  refer- 
ring to  assessability  of  stock,  and  the  requirement 
to  print  "Assessable"  or  "Non-Assessable"  on  the  face 
of  the  stock  certificate  is  confined  to  ore-reducing, 
mining  and  tunneling  companies. — §  581. 

(The  Pueblo  Smelting  and  Refining  Company.) 
ARTICLE  2.  The  objects  for  which  the  said  company 
hereby  formed  is  created  shall  be :  To  buy  and  sell  ores, 
metals  and  other  furnace  products ;  to  smelt  and  reduce 
lead,  gold,  silver,  copper  and  other  ores,  and  refine  bullion  ; 
manufacture  lead,  copper  and  iron  products  and  articles 
of  merchandise,  and  do  a  general  smelting,  refining  and 
metallurgical  business ;  to  erect  necessary  buildings,  mills, 


298  CORPORATIONS. 

machinery  and  appliances  ;  purchase  materials  for  the  proper 
working  thereof  ;  and  do  any  and  all  other  things  necessary, 
proper,  or  requisite  to  carry  into  effect  the  objects  aforesaid. 

(The  Omaha  and  Grant  Smelting    and    Refining    Company.} 

ARTICLE  2.  The  nature  of  the  business  to  be  trans- 
acted shall  be  : 

1st. — The  purchase,  lease,  erection  and  operation  of 
smelting  and  refining  works,  and  the  smelting  and  refining 
therein  of  gold,  silver,  and  other  valuable  ores  and  metals. 

2nd. — The  purchase,  lease  and  operation  of  mines  and 
mining  property,  for  the  purpose  of  obtaining  said  gold,  sil- 
ver and  other  valuable  ores. 

3rd. — The  purchase  of  gold,  silver  and  other  valuable 
ores  and  metals  for  smelting  and  refining,  and  the  sale  and 
disposal  of  the  products  thereof. 

4th. — To  acquire  by  donation,  purchase,  lease,  or  oth- 
erwise real  or  personal  property  of  any  kind,  and  to  use, 
maintain,  enjoy,  and  dispose  of  the  same  for  the  benefit 
of  said  corporation. 

(The  Taylor  &  Brunt  on  Ore  Sampling  Company.) 

ARTICLE  2.  The  objects  for  which  said  company  is 
created  are  to  acquire,  hold  and  operate  mills  and  works 
at  and  near  Aspen,  in  said  County  of  Pitkin,  for  the  crush- 
ing, sampling  and  testing  of  mineral-bearing  ores ;  and  to 
buy,  sell,  assay,  hold,  store,  ship  and  deal  in  such  ores 
and  their  products  on  its  own  account,  and  as  factor  or 
agent  for  others  ;  and  to  do  all  things  incident  to  the  gen- 
eral business  of  maintaining  and  operating  such  mills  and 
works,  and  dealing  in  all  kinds  of  mineral-bearing  ores 
and  the  products  and  proceeds  thereof. 

Stamps. 

The  War  Revenue  Act  of  1898  requiring  stamps 
on  certificates  of  stock  was  repealed  by  the  Act  of 
April  12,  1902,  and  no  stamps  have  been  required 
since  July  1,  1902. 

Filing  Fees. 

By  Act  of  April  6,  1901,  every  corporation  upon 
filing  its  articles  in  the  office  of  Secretary  of  State 
is  required  to  pay  $20  if  domestic,  $30  if  foreign, 
for  the  first  $50,000  of  its  capital  stock,  and  20  cents 
if  domestic,  30  cents  if  foreign,  for  each  additional 
$1,000  of  stock.  Upon  any  increase  of  capitalization 
the  charge  is  20  cents  and  30  cents  respectively,  for 
each  $1,000  of  increase. 


CORPORATIONS.  299 

The  additional  fees  to  Secretary  of  State  are  $5 
for  "Certificate  of  Authority,"  $2.50  for  filing  impres- 
sion of  seal,  and  $2.50  plus  five  cents  for  each  $1,000 
in  excess  of  $50,000  for  filing  certificate  of  paid  up 
stock.  Foreign  corporations  pay  $5  for  filing  copies 
of  law  of  the  State  of  their  incorporation,  and  $5 
for  filing  designation  of  Agency. 

License  Tax. 

By  the  Revenue  Acti  of  1902,  domestic  corpora- 
tions having  a  capital  stock  of  over  $25,000  are 
charged  an  annual  license  tax  of  two  cents  upon  each 
$1,000  of  its  capital  stock.  All  foreign  corporations 
are  taxed  four  cents  per  $1,000  and  those  whose 
stock  is  less  than  $1  per  share,  par  value,  are  taxed 
2%  cents  per  thousand  shares.  The  tax  is  payable 
to  the  Auditor  of  State  on  or  before  May  1st,  each 
year.  The  penalty  for  failure  to  pay  the  tax  is  a 
forfeiture  of  all  privileges  and  of  the  right  to  do 
business  in  the  State  or  maintain  suits. 

Assessments  on  Stock. 

By  3  M.  A.  8.  §  583a-583c  statutory  provisions 
were  enacted  for  the  assessment  of  shares  of  com- 
panies whose  stock  is  made  assessable  under  the  char- 
ter or  "by  the  laws  of  this  State."  The  assessment 
is  to  be  made  by  action  of  the  Board  of  Directors  by 
a  majority  vote,  notice  of  meeting  being  first  given 
to  each  Director.  No  greater  assessment  than  It) 
per  cent,  can  be  made  at  one  time,  and  a  second  as- 
sessment must  not  be  within  thirty  days  after  date 
of  sales  under  the  previous  assessment. 

The  assessment  is  made  payable  "immediately" 
and  if  unpaid  after  thirty  days,  is  considered  delin- 
quent, and  may  be  advertised  for  thirty  days  in  a 
daily  paper  published  at  the  place  of  the  chief  office 
of  the  company,  and  also  in  a  daily  paper  published 
where  the  mine  is  located  (with  provisions  for  cases 
where  daily  papers  are  not  published). 

If  not  paid  within  twenty  days  "from  the  date 
the  same  became  delinquent,"  the  secretary  is  em- 
powered to  sell  the  shares  at  public  auction  in  front 


30;j  CORPORATIONS. 

of  the  chief  office  of  the  company  to  the  highest  bid- 
der for  cash. 

The  Act  read  literally,  makes  the  sale  to  come 
off  within  the  period  of  publication;  but  it  must 
mean,  if  it  mean  anything,  that  the  sale  is  to  take 
place  not  less  than  twenty  days  after  the  expiration 
of  the  thirty  days'  publication. 

The  Act  further  requires  notice  to  be  sent  to 
each  stockholder,  informing  him  of  the  assessment. 

FOP.M  OF  RESOLUTION  TO  ASSESS. 

Resolved,  That  an  nssessment  of  five  per  cent,  is  hereby 
levied  and  made  upon  each  and  every  share  of  the  capital 
stock  of  this  corporation,  payable  immediately  at  the  office 
of  the  company  to  George  M.  Scott,  the  treasurer. 

NOTICE    OF    ASSESSMENT. 

Office  of  The  Experiment  Mining  Company, 

Equitable  Building. 
Denver,  Colo.,  Jan.  1, 1903. 

To  W.  E.  Bridgman,  Stockholder  : 

You  are  hereby  notified  that  at  a  regular  meeting  of 
the  Board  of  Directors  of  The  Experiment  Mining  Company 
this  day  held  at  the  office  of  said  company,  by  a  majority 
vote  of  all  the  directors,  each  and  every  share  of  the  cap- 
ital stock  of  said  company  was  assessed  five  per  cent,  on 
the  par  value,  such  per  cent,  amounting  to  $5.00  on  your  100 
shares  of  stock,  payable  immediately  to  George  M.  Scott,  the 
Treasurer,  at  this  office,  address  above  given,  and  that  such 
assessment,  if  not  paid  on  or  before  the  3d  day  of  February, 
1903,  will  be  delinquent,  and  your  stock  will  thereupon  be 
advertised  for  sale,  the  sale  to  take  place  on  the  28th  day  of 
March,  1903,  according  to  the  terms  of  the  Act  approved 
April  3,  1891,  entitled  "An  Act  relating  to  the  powers  and 
duties  of  the  directors  of  mining  stock  corporations  and 
to  the  assessment  and  sale  of  delinquent  shares  of  stock,  and 
for  other  purposes  relating  thereto,  and  to  repeal  all  laws 
inconsistent  therewith."  C.  S.  WALLACE,  Secretary. 

It  does  not  seem  that  this  Act  can  refer  to  com- 
panies by  whose  articles  the  stock  is  made  non- 
assessable. Nor  does  it  apply  to  assessments  for  in- 
stalments of  the  original  purchase  price  of  the  shares, 
sale  of  which  on  default  is  provided  for  by  M,  A.  8. 
§  480. 

In  the  formation  of  new  companies  we  would 
advise  that  the  stock  be  made  assessable.  As  long 


CORPORATIONS.  301 

as  the  mine  is  in  pay  no  assessments  are  needed, 
but  where  a  mine  ceases  to  pay,  there  is  no  practical 
method  to  proceed  except  by  assessment.  Any  other 
course  involves  the  idea  of  borrowing  money  and 
ultimate  sale  of  the  mine,  or  compelling  a  few  will- 
ing shareholders  to  take  the  risk  which  should  be 
borne  by  all. 

Irregular  Action. 

A  company  which  has  habitually  neglected  all 
formalities  cannot  plead  the  want  of  them  to  escape 
liability.— #.  V.  B.  Co.  v.  Bank,  95  Fed.  23.  So  held 
where  it  allowed  one  director  to  assume  entire  man- 
agement.— Robinson  Co.  v.  Johnson,  50  Pac.  215.  A 
resolution  of  the  Board  is  not  necessary  to  bind  the 
company  where  it  has  had  value  received  with  knowl- 
edge.— McKenzie  v.  Poorman  Mines,  88  Fed.  112. 

Fraudulent  Organization. 

A  company  may  sue  its  organizers  where  the 
real  price  paid  is  less  than  that  represented  to  the 
stockholders. — Pittsburg  Co.  v.  Spooner,  1$  N.  W. 
259;  17  Am.  St.  R.  149.  Acts  of  directors  distin- 
guished from  acts  of  the  company. — Summerlin  v. 
Fronteriza  Co.  41  Fed.  249.  Bona  fide  holder  of 
stock  issued  on  over  valuation  not  liable  to  creditors. 
— Du  Pont  v.  Tilden,  42  Fed.  87. 

Reorganization. 

Where  a  new  company  is  formed  with  sanie 
stockholders  or  other  like  suspicious  incidents  it  is 
but  a  successor  and  liable  for  the  debts  and  cove- 
nants of  the  old  one. — Higgins  v.  California  Co.  55 
Pac.  155. 

Agent. 

The  President  and  Secretary  alone  have  no  right 
to  appoint  a  general  agent. — Johnson  v.  Sage,  44  Pac- 
641. 

Miscellaneous  Rulings. 

Incorporators  are  liable  for  preliminary  ex- 
penses.— Hersey  v.  Tully,  44  pac-  $54;  See  Hecla  Co. 


302  FOREIGN  CORPORATIONS. 

v.  O'Neill,  19  N.  Y.  Sup.  592;  Winters  v.  Hiib  Co.  57 
Fed.  287.  Distinction  between  de  facto  and  de  jure 
director. — Rozecrans  Co.  v.  Morey,  43  Pac.  585.  In- 
stances where  officers  or  stockholders  may  recover 
for  services  on  a  quantum  meruit. — Severson  v.  Bi- 
metallic Co.  44  Pac.  79;  Felton  v.  West  Co.  40  Pac. 
70;  Ruby  Co.  v.  Prentice,  52  Pac.  210. 

Dissolution. 

By  Act  of  1891  (Acts,  p.  95)  provision  is  made 
for  the  dissolution  of  solvent  corporations  desiring 
to  go  out  of  business,  by  publication  and  filing  of  no- 
tices, without  judicial  action  thereon. 

For  consideration  of  the  rights  of  stockholders 
when  the  company  has  quit  business  and  has  no 
known  Board  of  Directors,  see  Tennessee  Co.  v. 
Ayers,  43  8.  W.  744. 


FOREIGN  CORPORATIONS. 


A  corporation  has  no  recognized  existence  except 
by  comity  outside  of  the  State  of  its  organization.  It 
is,  however,  always  allowed  to  do  business  elsewhere 
by  complying  with  certain  statutory  conditions  for 
the  protection  of  local  creditors,  such  conditions 
usually  including  that  it  file  a  copy  of  its  Articles 
with  the  Secretary  of  State  and  with  the  County 
Recorder  of  the  place  where  it  is  intended  to  carry 
on  its  mining  operations  or  other  principal  business, 
and  that  it  designate  a  local  agent  upon  whom 
process  may  be  served. 

Such  conditions  for  the  State  of  Colorado  are 
that  it  make  and  file  duplicate  certificates,  signed 
by  the  President  and  Secretary,  duly  acknowledged, 
of  which  the  following  is  a  correct  form: 

DESIGNATION  OF  PROCESS  AGENT. 

STATE  OF  NEW  YORK,  County  of  Neiv  York:  ss. 

It  is  hereby  certified,  That  the  Remonetized  Silver 
Mining  Company,  a  corporation  organized  under  the  laws 


FOREIGN  CORPORATIONS.  303 

of  said  State,  doth  hereby  designate  that  the  "principal 
place  where  the  business  of  such  corporation  shall  be  car- 
ried on  in  the  State  of  Colorado,"  is  Central  City,  County 
of  Gilpin,  State  of  Colorado,  and  that  Henry  C.  Becker, 
residing  at  said  principal  place  of  business,  is  the  authorized 
agent  of  said  company,  upon  whom  process  may  be  served. 

Witness  the  corporate  name  and  seal  of  said  company, 
and  the  signatures  of  its  President  and  Secretary,  this  3d 
day  of  February,  A.  D.  1908. 

REMONETIZED  SILVER  MINING  COMPANY, 

[SEAL.]  JOHN    K.  CREEVEY,  President. 

CLARENCE  CARY,  Secretary. 

STATE  OF  COLORADO ,,  County  of  New  York:  ss. 

I,  Herbert  E.  Dickson  (195  Broadway),  Commissioner 
of  Deeds  of  the  State  of  Colorado,  duly  commissioned  and 
sworn,  in  and  for  said  County,  do  hereby  certify  that  John 
K.  Crecvey,  President,  and  Clarence  Gary,  Secretary  of  the 
within  named  Corporation,  who  are  personally  known  to  me 
to  be  such  President  and  Secretary  of  said  Corporation, 
personally  appeared  before  me  this  day,  and  acknowledged 
the  within  Instrument  (in  duplicate)  to  be  their  free  and 
voluntary  act  and  deed,  and  the  free  and  voluntary  act  and 
deed  of  said  Corporation. 

Witness  my  hand  and  official  seal  this  3d  day  of  Feb- 
ruary, A.  D.  1903.  Herbert  E.  Dickson, 

[SEAL.]  Commissioner  for  Colorado. 

One  copy  of  the  above  instrument  must  be  filed 
with,  the  Secretary  of  State,  and  one  in  the  office 
of  the  Recorder  of  the  proper  county. 

A  similar  form,  not  naming  the  agent,  but  desig- 
nating him  in  general  terms,  was  held  sufficient  in 
Goodwin  v.  Colorado  Co.  110  U.  S.  1. 

M.  A.  S.  §  499,  requiring  the  same  certificates, 
has  been  construed  as  mandatory,  and  it  is  inti- 
mated that  the  acquisition  of  real  estate  is  doing 
business  within  the  meaning  of  the  section;  but  it 
does  not  prevent  the  company  resisting  a  trespass 
by  maintaining  suit  at  law. — Utley  v.  Clark-Gardner 
Co.  4  M.  R.  39;  In  re  Comstock,  3  Saiv.  223.  But  a 
single  act  of  business  will  not  bring  the  company 
within  the  requirements  of  the  Act. — Colo.  Iron 
Works  v.  Sierra  Grande  Co.  15  Colo.  499;  Cooper  Co. 
v.  Ferguson,  113  U.  8.  727. 

And  where  the  matter  has  been  at  first  neglected 
and  yet  complied  with  before  the  suing  out  of  a 
quo  warranto,  or  other  inquisition,  or  at  least  be- 


304  FOREIGN  CORPORATIONS. 

fore  adverse  rights  have  accrued,  the  final  compli- 
ance would  doubtless  be  considered  as  having  a  retro- 
active effect  in  a  manner  analogous  to  the  case  of 
naturalization.  See  p.  282. 

The  same  section  declares  that  all  foreign  cor- 
porations shall  be  "subject  to  all  the  liabilities,  re- 
strictions and  duties  which  are  or  may  be  imposed 
upon  corporations  of  like  character  organized  under 
the  general  laws  of  this  State  and  shall  have  no  other 
or  greater  power;"  forbids  the  purchase  or  holding 
of  real  estate  by  foreign  corporations  except  as  pro- 
vided for  in  such  Act  and  prohibits  any  mortgage 
or  other  preference  to  foreign,  to  the  exclusion  of 
domestic  creditors,  postponing  any  such  mortgage 
until  all  domestic  debts  at  the  date  of  its  record 
shall  have  been  paid. 

An  amendment  (1893,  p.  88)  adds  provisions  for 
notice  of  intended  mortgage,  requiring  creditors  to 
prove  their  claims  or  be  cut  out  by  such  mortgage. 

Copy  of  Articles. 

Foreign  corporations  are  further  required 
(§  500)  to  file  a  copy  of  their  charter  in  the  office  of 
the  Secretary  of  the  State  of  Colorado;  or  if  "in- 
corporated by  certificate  under  any  general  incor- 
poration law,  a  copy  of  such  certificate  and  of  such 
general  incorporation  law  duly  certified  and  author- 
ized by  the  proper  authority  of  such  foreign  State, 
Kingdom  or  Territory."  These  papers  are  not  re- 
quired to  be  filed  with  the  County  Recorder. 

The  "proper  authority"  alluded  to  would  be  in 
general  the  Secretary  of  the  State  where  organized. 

Upon  failure  to  comply  with  the  requirements 
of  either  section  every  officer,  agent  and  stockholder, 
is  made  personally  responsible  on  all  contracfs  made 
while  the  company  remains  in  default. — §  501.  And 
this  seems  to  be  the  practical  effect  of  the  Act,  mak- 
ing the  penalty  a  personal  one,  and  the  title  will  pass 
to  and  out  of  such  a  corporation  by  proper  deeds 
notwithstanding  its  failure  to  comply  with  these  stat- 
utes.— Fritts  v.  Palmer,  132  U.  S.  282. 


INDIAN  RESERVATIONS.  305 

By  Act  of  1891  the  reorganization  or  liquidation 
of  foreign  companies  to  the  prejudice  of  local  share- 
holders is  attempted  to  be  prohibited. — Acts,  p.  99. 

Filing  fees  and  taxes.    See  p.  2.9.9. 

Domestic  Charter  Preferable. 

The  provisions  of  the  above  and  like  sections  in 
other  states,  together  with  the  fact  that  a  foreign 
corporation  is  liable  to  attachment  as  a  non-resident 
in  many  cases  where  a  defendant;  and  must  file 
special  security  for  costs  where  a  plaintiff,  renders  a 
domestic  organization  preferable  in  most  cases. 

Domestic  Organization  by  Non-Residents. 

The  Corporation  Law  of  Colorado  does  not  in 
terms  require  the  organizing  associates  to  be  citi- 
zens or  residents;  and  although  a  domestic  organiza- 
tion composed  entirely  or  substantially  of  non-resi- 
dents would  be  practically  in  some  respects  a  foreign 
corporation,  yet  its  validity,  at  least  when  collaterally 
attacked,  seems  to  be  conceded. — Humphreys  v. 
Mooney,  4  M.  R.  76.  . 


INDIAN  RESERVATION. 


An  Indian  reservation  is  not  a  part  of  the  public 
domain  open  to  exploration  or  occupation,  and  a 
valid  mining  location  cannot  be  made  upon  it. — 
French  v.  Lancaster,  J/7  N.  W.  395.  Nor  can  both 
parties  waive  the  .point. — Id.  An  attempted  location 
made  before  the  extinguishment  of  the  Indian  title 
must  yield  to  one  made  after  its  purchase. — Kendall 
v.  San  Juan  M.  Co.  9  Colo.  3^9. 

But  in  Noonan  v.  Caledonia  M.  Co.  121  U.  S.  393, 
the  Supreme  Court  of  the  United  States  have  ruled 
that  on  the  cession  of  the  reservation  the  claim 
becomes  valid.  This  case  was  followed  by  the  affirm- 
ance of  the  Kendall  case  above  cited  (144  U.  S.  658) 
where  the  court  adjudge  that  the  original  location, 
although  not  valid,  might  have  been  made  good  by 


306  ORE  CONTRACTS. 

record  in  the  nature  of  a  relocation  within  the  same 
period  of  time  after  the  opening  of  the  reserve,  as  is 
allowed  to  record  from  the  date  of  a  discovery.  This 
not  having  been  done  an  intervening  locator  who 
entered  after  the  opening  of  the  reservation  was  held 
to  have  the  elder  and  better  title. 

A  claim  within  the  reservation  cannot  be  pat- 
ented.— Copp.  M.  L.  253.  And  the  location  of  scrip 
thereon  is  void.— U.  8.  v.  Carpenter,  111  U.  8.  347. 

The  court  will  protect  a  right  to  mine  by  license 
from  the  Indian  Nation. — Oolagah  Go.  v.  McCaleb, 
68  Fed.  86. 

When  a  reservation  is  opened  it  is  not  necessary 
for  mineral  prospectors  to  await  the  issue  of  the 
proclamation. — McFadden  v.  Mt.  View  Co.  87  Fed. 
154. 


ORE  CONTRACTS. 


An  ore  purchase  contract  is  not  assignable. — 
Arkansas  Val.  8m.  Co>.  v.  Belden  Co.  127  U.  8.  379; 
Winchester  v.  Davis  Co.  67  Fed.  45;  Wheeler  v.  Wal- 
ton Co.  64  Fed.  664. 

Failure  to  receive  pay  justifies  failure  to  make 
future  deliveries. — Cherry  Val.  Co.  v.  Florence  Co. 
64  Fed.  569. 

A  promise  to  pay  a  debt  out  of  the  proceeds  of 
ore  is  not  an  equitable  assignment  of  such  proceeds. 
—Silent  Friend  Co.  v.  Abbott,  42  Pac.  318. 

Action  for  conspiracy  between  officers  of  the 
mine  and  mill  owners  to  obtain  bonus  for  treating 
the  ore — presumptions  and  evidence  in  such  case. 
— Fox  v.  Hale  Co.  41  Pac.  308. 

A,  in  Michigan,  agreed  to  sell  to  plaintiff,  graph- 
ite ore  to  be  delivered  on  cars  in  Mexico;  held  that 
cause  of  action  for  non-delivery  accrued  in  Mexico. 
— U.  8.  Co.  v.  Pacific  Co.  68  Fed.  442. 

Construction  of  ore  contracts  calling  for  certain 
percentages  of  mineral  and  for  special  assay  values 


ORB  BUYERS.  307 

with  deductions  for  moisture. — Trotter  v.  Heckscher, 
4  Atl.  83;  7  Atl.  353;  Lehigh  Co.  v.  Trotter,  10  Atl. 
608;  Anvil  Co.  v.  Humble,  153  U.  8.  540;  Martinez  v. 
Earnshaw,  22  Atl.  668.  Measure  of  damages  for  fail- 
ure to  deliver  ore. — Patrick  v.  Colo.  Sm.  Co.  38  Pac. 
236. 

Amount  of  moisture  is  determinable  by  tests  of 
like  ore  from  same  mine. — Vietti  v.  Nesbitt,  41  Pac. 
151. 

The  smelter  is  not  liable  for  mineral  left  in  the 
tailings,  there  being  no  proof  of  negligence. — Guild 
Co.  v.  Mason,  46  Pac,  001. 

Where  an  average  of  a  certain  assay  is  to  be  ac- 
counted for,  one  month  may  make  up  for  another. — 
Fox  v.  Mackay,  57  Pac.  672. 

Construction  of  contract  for  delivery  of  ore  "free 
from  foreign  substance." — Worthington  v.  Given,  24 
So.  739.  Of  ore  breaking  contract  terminable  when 
prejudicial  to  the  development  of  the  mine. — Anvil 
Co.  v.  Humble,  153  U.  8.  540. 

As  to  when  contract  to  pay  out  of  ore  proceeds 
becomes  an  absolute  promise  to  pay,  see  Mclntyre  v. 
Ajax  Co.  60  Pac.  552. 


ORE  BUYERS. 


Ore  Book  to  Be  Kept. 

Every  company  or  individual  "engaged  in  the 
business  of  milling,  sampling,  concentrating,  reduc- 
ing, shipping  or  purchasing  ores  in  the  State  of 
Colorado,"  is  required  to  keep  a  book  in  which  shall 
be  entered  at  the  time  of  the  delivery  of  each  lot 
of  ore — 

First. — The  name  of  the  party  on  whose  behalf  such 
ore  is  delivered,  as  stated. 

Second. — The  name  of  the  teamster,  packer  or  other 
persons  actually  delivering  such  ore,  and  the  name  of  the 
owner  of  the  team  or  pack  train  delivering  such  ore. 

Third. — The  weight  or  amount  of  every  such  lot  of 
ore. 


::os  ORE  BUYERS. 

Fourth. — The  name  and  location  of  the  mine  or  claim 
from  which  it  shall  he  stated  that  the  same  has  been  mined 
or  procured. 

Fifth. — The  date  of  delivery  of  any  and  all  lots 
or  parcels  of  ore. — Sec.  1,  Feb.  1,  1S77,  M.  A.  S.  Sec.  3227. 

The  succeeding  sections  provide  that  parties 
claiming  an  interest  in  ore  delivered  shall  have  the 
privilege  of  examining  such  books  and  for  penalties 
in  case  of  failure  to  keep  the  same.  And  that  neglect 
to  make  proper  inquiries  from  parties  bringing  ore  to 
the  mill  shall  not  excuse  failure  to  comply.  They 
also  attempt  to  make  the  purchaser  criminally  liable 
for  ore  bought  from  mines  held  "contrary  to  any 
penal  law  now  in  force,"  which  was  intended  to  in- 
clude cases  where  possession  had  been  taken  by  vio- 
lence, contrary  to  the  provisions  of  the  Jumping  Act. 
— M.  A.  8.  §  3165;  3231. 

Bullion  and  Specimen  Buyers. 

In  1889  a  similar  Act  was  passed  with  refer- 
ence to  buyers  of  gold  dust,  amalgam,  bullion  and 
gold  specimens,  the  intent  being  to  produce  means  to 
trace  such  property  when  stolen. — M.  A.  8.  %  3243- 
3246.  Justices  of  the  Peace  have  jurisdiction  of  vio- 
lation of  this  Statute.— §  3247. 

Ore  Bought  of  Wrongful  Mine  Claimant. 

In  1889  the  question*  of  the  responsibility  of  the 
ore  buyer  for  .ore  taken  by  trespass  having  often 
arisen  and  a  case  of  some  importance  involving  the 
question  then  pending  in  the  Supreme  Court,  an  Act 
was  passed  providing  for  the  case  of  ore  taken  from 
mines,  the  title  to  which  was  in  dispute. — M.  A.  8. 
§  3235-3242. 

It  provides  that  a  party  in  peaceable  possession 
under  claim  and  color  of  title  is  to  be  deemed  the 
owner,  and  the  buyer  of  ore,  in  good  faith  is  to  taRe 
title  to  the  ore,  but  that  the  party  out  of  possession 
may  protect  himself  by  notice  to  the  ore  buyer,  the 
following  form  containing  the  substance  required: 


ORE  BUYERS.  309 

Dcnucr,  Colo.,  Jan.  S,  1903. 
To  The  Public  Sampling  Works: 

Take  notice  that  I  am  the  claimant  and  owner  and  en- 
titled to  the  possession  of  the  Nightmare  Lode  Mining  Claim, 
situate  in  Creede  Mining  District,  County  of  Mineral,  State 
of  Colorado :  That  James  Elliott  and  Loren  M.  Hart  and 
persons  under  them  are  mining  and  shipping  gold  ore, 
which  is  my  property,  from  said  claim  under  the  name  of 
the  Pleasant  Dream  Lode,  or  under  some  other  name.  And 
you  are  hereby  notified  under  the  terms  of  the  Statute  in 
such  case  made  and  provided  that  you  will  be  held  respon- 
sible for  all  ores  purchased  and  delivered  from  said  mine, 
by  said  James  Elliott  and  Loren  M.  Hart,  or  either  of  them, 
or  by  any  person  for  them,  subsequent  to  the  service  of 
this  notice. 

A.  B.  ROEDER. 

The  person  serving  this  notice  must  within  five 
days  thereafter  follow  it  up  with  suit  for  injunction, 
and  provision  is  made  to  limit  the  liability  in  case 
the  injunction  is  not  heard  within  thrty  days,  and  to 
avoid  its  effect  if  the  writ  is  denied  or  afterwards  dis- 
charged, although  the  plaintiff  may  ultimately  prove 
title.  If  such  notice  is  served  and  followed  by  ob- 
taining the  writ  and  the  party  warned  persists  in 
buying  the  ores  in  dispute,  he  is  to  be  held  respon- 
sible to  the  person  ultimately  adjudged  the  owner. 

If  suit  has  been  already  brought  when  the  notice 
is  served,  add  to  the  above  form  (§  3230): 

"Suit  is  pending  in  the  District  Court  of  Mineral 
County  to  enjoin  the  further  shipping  or  sale  of  ores  by 
said  parties  from  said  claim." 

A  proviso  is  contained  in  the  Act  that  it  shall 
not  protect  against  liability  for  the  purchase  of  ores 
taken  by  persons  holding  claims  under  the  Mine- 
Jumping  Act,  or  ore  stolen  by  lessees. 

Ore  Mined  Under  Claim  of  Right. 

The  suit  in  the  Supreme  Court  referred  to, 
Omaha  Co.  v.  Tabor,  16  M.  R.  184,  was  decided  later, 
holding  the  ore  buyers  liable  as  trespassers — the  de- 
cision making  no  reference  to  the  point  really  in- 
volved or  the  line  of  authorities  relative  to  the  point 
— that,  where  personal  property  is  produced  from 
real,  by  the  labor  of  a  party  in  possession  with  claim 
and  color  of  title,  it  becomes  marketable  without 


310  PENAL  PROVISIONS. 

regard  to  tho  ultimate  decision  on  the  question  of 
who  was  the  owner  of  the  realty. — Brown  v.  Cald- 
ivell,  12  M.  R.  674;  Smith  v.  Idaho  Q.  M.  Co.  11  Pac. 
878;  Mather  v.  Trinity  Church,  14  M.  R.  472;  Lehigh 
Co.  v.  N.  J.  Co.  26  Atl.  920;  Harlan  v.  Harlan,  15  Pa. 
St.  507;  Anderson  v.  Hapler,  34  III.  436;  Page  v. 
Fowler,  28  Cal.  605;  National  Co.  v.  Weston,  1~>  Atl. 
569;  Giffin  v.  Pipe  Lines,  33  Atl.  578. 


PENAL  PROVISIONS. 


False  Weights  and  Measures, 

There  are  in  all  the  mining  States  penal  Stat- 
utes more  or  less  alike  in  wording  and  intent  pre- 
scribing punishment  for  such  self-evident  offenses 
as  the  using  of  fraudulent  gold  dust  scales  (M.  A.  S. 
§  1380)  false  assay  or  false  ore-buyers'  weights  and 
scales  (M.  A.  8.  §  3232)  or  the  certifying  to  false 
assays  or  making  false  return  of  ore  weight  or  value 
(M.  A.  8.  §  3233)  or  refusing  to  turn  over  proceeds 
of  gold  quartz  under  the  old  system  of  custom  work. 
— M.  A.  8.  §  1381. 

Debased  Gold  Dust. 

Sections  1262  and  1263  make  it  penal  to  know- 
ingly have  or  pass  debased  gold  dust.  In  Peo.  v. 
Page,  1  Ida.  102,  the  defendant  was  convicted  on  in- 
dictment for  having  in  possession  instruments  for 
manufacturing  bogus  gold  dust.  In  Peo.  v.  Sloper, 
1  Ida.  158  and  Peo.  v.  Page,  Id.  189,  the  offense  of  ut- 
tering such  material  is  discussed. 

Salting  Ore. 

M.  A.  S.  Sec.  1391. — That  every  person  who  shall 
mingle  or  cause  to  be  mingled  with  any  sample  of  gold  or 
silver-bearing  ore,  any  valuable  metal  or  substance  whatever 
that  will  increase  or  in  any  way  change  the  value  of  said 
ore,  with  the  intent  to  deceive,  cheat  or  defraud  any  per- 
son or  persons,  shall,  on  conviction  thereof,  be  punished 
by  a  fine  not  less  than  five  hundred  nor  more  than  one 
thousand  dollars,  or  by  confinement  in  the  penitentiary  for 


PENAL  PROVISIONS.  311 

a  term  not  less  than  one  nor  more  than  fourteen  years,  or 
by  both  such  fine  and  imprisonment. — Feb.  12,  187^. 

Ore  Stealing  by  Lessees. 

M.  A.  S.  Sec.  3234.— -If  any  person,  lessee,  licensee  or 
employee  in  or  about  any  mine  in  this  State,  shall  break 
and  sever,  with  intent  to  steal  the  ore  or  mineral  from  any 
mine,  lode,  ledge  or  deposit  in  this  State,  or  shall  take, 
remove  or  conceal  the  ore  or  mineral  from  any  mine,  lode, 
ledge  or  deposit,  with  intent  to  defraud  the  owner  or  owners, 
lessee  or  licensee  of  any  such  mine,  lode,  ledge  or  deposit, 
such  offender  shall  be  deemed  guilty  of  felony,  and  on  con- 
viction shall  bo  punished  as  for  grand  larceny. — Feb.  7, 
1S77. 

This  section  does  not  apply  to  ore  stealing  by 
strangers,  or  to  what  at  common  law  would  be  con- 
sidered larceny,  in  any  case  where  no  privity  exists 
between  the  parties.  Its  constitutionality  was 
doubted  under  certain  technical  clauses  of  the  con- 
stitution, but  it  has  been  declared  valid  in  Clare  v. 
Peo.  9  Colo.  122. 

Trespass  Not  Larceny. 

Taking  of  ore  by  severing  it  from  the  realty, 
accompanied  by  its  immediate  asportation,  can  in  no 
case  be  considered  larceny. — Peo.  v.  Williams,  4  M. 
R.  185;  State  v.  Berry  man,  Id,  199;  State  v.  Burt,  Id. 
190. 

This  distinction  is  in  some  of  the  cases  referred 
to  as  unsubstantial  and  technical,  although  its  force 
as  decided  law  is  not  questioned.  On  the  contrary, 
it  is  a  distinction  necessary  to  check  the  constant 
tendency  to  seek  a  criminal  remedy  where  the  civil 
remedy  is  ample,  and  in  almost  all  cases  of  such 
severance  a  felonious  intent  is  wholly  wanting. 

Removing  Location  Marks. 

M.  A.  S.  Sec.  1423. — That  if  any  person  or  persons 
shall  wilfully  and  maliciously  deface,  remove,  pull  down, 
injure  or  destroy  any  location  stake,  side-post,  corner-post, 
landmark  or  monument,  or  any  other  legal  land  boundary 
monument  in  this  State,  designating,  or  intending  to  desig- 
nate, the  location,  boundary  or  name  of  any  mining  claim, 
lode  or  vein  of  mineral,  or  the  name  of  the  discoverer,  or 
date  of  discovery  thereof,  the  person  or  persons  so  offending 
shall  be  guilty  of  a  misdemeanor,  and  on  conviction  thereof 
shall  be  fined  not  more  than  one  thousand  dollars,  or  im- 
prisoned not  more  than  one  year,  at  the  discretion  of  the 


312  PENAL  PROVISIONS. 

court ;  Provided,  That  this  act  shall  not  apply  to  abandoned 
property. — Feb.  9,  187G. 

Under  a  statute  on  this  subject  it  was  held  that 
there  must  be  proof  of  a  lawful  stake  on  a  valid  min- 
ing claim — and  that  where  the  only  proof  of  discov- 
ery was  that  the  stake  was  posted  after  finding 
"quartz  and  vein  matter,"  there  was  no  proof  of  a 
valid  location  stake,  such  as  the  law  was  intended 
to  protect. — Territory  v.  McKey,  19  Pac.  395. 

Malicious  Mischief. 

By  M.  A.  8.  §  317 J,  -it  is  made  a  misdemeanor  to 
unlawfully  destroy  any  shaft-guard  or  remove  the 
timbers  from  any  shaft,  incline  or  tunnel. 

Cutting  Timber  or  Removing  Buildings. 

Besides  the  above  section  as  to  malicious  mis- 
chief there  are  two  sections  (3167,  3168)  harsh  and 
cruel,  in  denning  mere  trespass  into  crime,  by  leav- 
ing out  entirely  the  element  of  malice  or  other  crim- 
inal intent,  making  the  cutting  of  timber  or  re- 
moving of  buildings  a  misdemeanor.  The  strictest 
construction  against  it  has  been  heretofore  given  to 
a  statute  of  like  character. — Bradley  v.  Peo.  8  Colo. 
599. 

Jumping  Claims  by  Stealth  or  Violence. 

M.  A.  S.  §  3165,  passed  in  1874,  prohibits  acts  of 
this  character.  The  Act  consists  of  a  single  para- 
graph of  interminable  length.  It  makes  the  asso- 
ciation of  two  or  more  persons  for  the  purpose  of 
taking  possession  of  a  claim  in  possession  of  another, 
by  stealth  or  violence,  a  misdemeanor  punishable  by 
imprisonment  not  to  exceed  six  months  and  by  fine 
not  to  exceed  $250.  The  section  is  intended  to  pre- 
vent what  has  commonly  been  termed  "jumping," 
which  word  is  met  with  in  some  of  the  old  statutes 
as  well  as  in  the  district  rules,  and  occasionally  in 
law  reports. — Arnold  v.  Baker,  7  M.  R.  Ill;  Mur- 
phy v.  (7o&&,  5  M.  R.  330.  As  a  penal  statute  it  is 
awkwardly  framed,  and  the  substantial  remedy  is  by 
a  section  passed  at  the  same  time,  by  which  pusses- 


PENAL  PROVISIONS.  313 

sion  is  restored  to  the  party  forcibly  dispossessed. — 
See  p.  334. 

Homicide  Ensuing  From  Mine  Jumping  is  made 

murder  in  the  first  degree  by  Act  of  1874, 
amended  in  1876  (M.  A.  8.  §  3166),  but  this  ill  ad- 
vised provision  is  doubtless  now  nugatory  the  sec- 
tion of  the  penal  code  defining  murder,  having  been 
since  repeatedly  amended. — Acts  of  1901,  p.  153. 

Coal  Mines. 

There  are  also  special  Acts,  M.  A.  8.  §  3181-3204. 
and  Acts  of  1893  p.  347  regulating  coal  mines,  spe- 
cially providing  for  inspection  of  same  and 
guarding  against  spontaneous  combustion,  gob-fires, 
open  pits,  fire  damp  and  other  dangers. 

The  Federal  Act  of  March  3,  1891  (26  8 tat.  L, 
1104)  provides  for  the  inspection  and  regulation  of 
coal  mines  in  the  Territories  and  prohibits  employ- 
ment of  children  in  the  same. 

Oil  Wells  are  required  to  keep  their  products  from 
emptying  into  any  natural  water  course. — M.  A.  S. 


Ventilation — Children — Strikes. 

The  Constitution,  Art.  16,  §  2,  requires  the  pas- 
sage of  laws  securing  safety  escapes  and  ventilation 
in  mines,  but  there  have  been  no  statutes  yet  passed 
upon  these  subjects  except  the  Colliery  Acts  above 
mentioned.  The  employment  of  children  under  four- 
teen years  of  age  is  forbidden  by  statute,  §  413- 
There  are  no  Acts  especialy  referring  to  strikes 
(barring  the  Arbitration  Act  of  1897),  negligence  of 
employers,  or  attempting  to  regulate  working  of 
mines  (other  than  coal  mines)  under  penalties. 
See  INSPECTOR. 


314  EJECTMENT. 


EJECTMENT. 


Pleadings. 

Under  Code  practice  the  names  of  the  various 
actions  are  abolished,  but  the  distinctions  being  in- 
herent, the  term  Ejectment  has  its  specific  applica- 
tion the  same  as  formerly. 

Section  267  Colo.  Code  requires  a  concise  state- 
-ment  in  the  complaint  of  the  nature  of  the  title  when 
possessory. 

Supporting  Adverse  Claim. 

It  is  the  proper  action  to  bring,  and  the  one  in 
fact  generally  brought  in  support  of  an  adverse  claim. 
—Becker  v.  Pugh,  15  M.  R.  30.',;  Burke  v.  McDonald. 
IS  Pac.  351.  In  such  suit  it  is  immaterial  which  party 
is  in  actual  possession  at  the  time  when  the  action 
was  brought. — Id.  And  no  proof  of  an  ouster  is 
required. — Golden  Fleece  Co.  v.  Cable  Go.  1  M.  R.  J20. 
Or  each  party  may  be  in  possession  of  a  part  of  the 
contested  premises. — Rose  v.  Richmond  Co.  27  Pdc. 
110').  Notifying  defendant  not  to  work  is  an  ouster. 
— Bramlett  v.  Flick,  -57  Pac.  869. 

The  object  of  the  suit  is  to  determine  the  right 
of  possession,  and  the  result  is  to  decide  which  party 
is  entitled  to  a  patent  from  the  United  States.  The 
Government  being  thus  an  interested  party,  each 
side  must  prove  its  own  case  affirmatively,  and  to 
either  recover  or  successfully  defend  must  show  a 
valid  location. — Bay  State  Co.  v.  Brown,  21  Fed.  167; 
Jackson  v.  Roby,  109  U.  8.  W> ;  McG-innis  v.  Egbert. 
15  M.  R.  329;  Rosenthal  v.  Ives,  15  M.  R.  324.  Neither 
party  is  entitled  to  a  verdict  upon  mere  proof  of 
prior  possession  alone — as  is  the  rule  in  a  contest 
where  individuals  only  are  interested. — Sears  v. 
Taylor,  »  M.  R.  318.  But  possession  alone  is  good 
against  an  intruder,  especially  one  who  enters  by 


EJECTMENT.  315 

violence. — Haws  v.  Victoria  Co.  160  U.  S.  303.  Pos- 
session may  become  incidentally  a  material  issue  in 
the  case. — See  ADVERSE  CLAIM. 

Averment  of  Suit  Brought  in  Time. 

In  a  complaint  carefully  and  technically  drawn 
there  will  be  an  averment  that  the  adverse  claim  was 
filed  within  the  period  of  publication  and  the  suit 
brought  within  the  30  days,  but  both  the  right  of  the 
thing  and  the  weight  of  authority  is  that  they  are 
not  essential  averments.  If,  in  fact,  the  adverse 
claim  was  not  filed  or  the  suit  not  brought  within 
these  respective  limited  periods  it  is  a  matter  of 
defense  to  be  raised  by  the  answer. — Providence  Co. 
v.  Marks,  60  Pac.  938;  Marshall  Co.  v.  Kirtley,  12' 
Colo.  417;  Altoona  Co.  v.  Integral  Co.  4$  Pac.  1047; 
Pennsylvania  Co.  v.  Bales,  70  Pac.  444- 

The  cases  to  the  contrary  are  Cronin  v.  Bear 
Creek  Co.  32  Pac.  204;  Mattingly  v.  Lewisohn,  19  Pac. 
310. 

No  Second  Suit. 

If  suit  be  dismissed  a  second  suit  cannot  be 
brought  after  the  expiration  of  the  thirty  days. — 
Steves  v.  Carson,  16  M.  R.  12;  and  if  not  filed  in 
time  the  suit  cannot  be  supported  as  an  ordinary 
ejectment. — Hunt  v.  Eureka  Gulch  Co.  14  Colo.  451. 

Second  Trial. 

The  right,  as  of  course,  to  a  second  trial  in  eject- 
ment in  Colorado  is  abolished.— Acts  1899,  p.  199. 

Possession  Without  Location — Location  Without 
Discovery. 

The  Congressional  Act,  §  2320,  says  that  "no 
location  of  a  mining  claim  shall  be  made  until  the 
discovery  of  the  vein."  And  in  sequence  to  this  it 
has  been  ruled  that  if  there  is  no  valid  location  there 
can  be  no  rightful  possession. — Belk  v.  Meagher,  1 
M.  R.  510;  Sweet  v.  Webber,  7  Colo.  450.  A  pros- 
pector, at  least  after  he  has  discovered  mineral,  has 
the  right  to  be  undisturbed  in  whatever  shaft  or 


316  EJECTMENT. 

other  work  he  is  prosecuting. — Faxon  v.  Barnard,  9 
M.  R.  515.  But  only  by  compliance  with  the  Statute 
(by  a  valid  location)  can  he  prevent  other  prospec- 
tors from  entering  upon  any  ground  except  that  in 
his  actual  occupation. — Becker  v.  Pugh,  15  M.  R.  304. 
The  posting  of  notice  without  discovery  or  indica- 
tions of  mineral  cannot  warn  off  other  prospectors. 
— Erhardt  v.  Boaro,  15  M.  R.  447.  He  may  protect 
himself  in  his  pedis  possessio  (the  ground  in  actual 
as  distinguished  from  constructive  possession), 
while  in  the  search  for,  before  he  has  discovered, 
mineral.  And  as  against  another  miner,  where 
neither  has  discovered  a  vein,  he  has  the  better 
right.— Field  v.  Grey,  25  Pac.  793. 

The  question  which  these  citations  lead  up  to  is 
this:  Can  a  prospector,  before  discovering  mineral, 
stake  off  a  full  claim  and  keep  off  all  other  pros- 
pectors while  he  is  engaged  in  hunting  for  mineral? 
In  other  words,  can  he  set  up  his  stakes  first  and 
sink  his  discovery  shaft  afterwards,  on  the  suppo- 
sition that  when  he  does  strike  the  vein  his  stakes 
already  set  will  be  found  to  cover  the  legal  width 
on  each  side?  Can  he,  in  spite  of  the  law  which 
says  he  cannot,  make  a  valid  location  before  dis- 
covery: or,  which  is  the  same  thing,  have  all  the 
practical  benefits  of  a  location,  before  such  discov- 
ery? The  cases  go  to  the  length  of  protecting  his 
actual  workings — and  this,  would  prevent  encroach- 
ment so  close  as  to  hinder  work  or  threaten  a  breach 
of  the  peace.  The  Boaro  case  seems  to  intimate  that 
he  may  protect  himself  when  at  work  on  float,  or 
after  substantial  assurance  of  the  proximity  of  the 
lode.  In  the  Field  case  the  point  is  approached  and 
almost  decided,  that  he  may  hold  by  location  with- 
out discovery.  The  burden  of  the  other  cases  and 
the  text  of  the  law  is  against  the  proposition — that 
staking  a  claim  before  discovery  excludes  other  pros- 
pectors. All  have  the  same  right  to  seek  till  one  has 
found;  no  one  has  a  right  to  fence  out  others  from 
the  right  of  seeking  what  he  himself  is  only  seek- 
ing. See  pp.  30,  33.  After  discovery  is  made  the 


EJECTMENT.  317 

ownership   of    everything   within   the   boundaries   is 
practically  absolute. — Seymour  v.  Fisher,  16  Colo.  192. 

Possession — How  Proved. 

A  person  who  has  purchased  a  mining  claim 
which  had  been  properly  located  and  marked  out 
upon  the  ground,  and  who  is  personally  or  by  his 
agents  upon  the  claim,  working  and  developing  it, 
and  keeping  up  the  boundary  stakes  and  marks 
thereof,  is  not  merely  in  the  constructive  possession 
of  such  claim  by  virtue  of  mining  laws,  but  is  in  the 
actual  'possession  of  the  whole  claim:  such  posses- 
sion is  a  possessio  pedis,  extending  to  the  boundary 
lines  of  the  claim. — North  Noonday  Co.  v.  Orient  Co. 
9  M.  R.  531.  Digging  a  shaft,  building  a  cabin,  etc., 
held  proof  of  possession. — Koons  v.  Bryson,  69  Fed. 
297. 

Actual  occupation  of  a  part  of  the  claim  under 
papers  calling  for  the  entire  tract  by  metes  and 
bounds,  gives  constructive  possession  of  the  entire 
tract. — Harris  v.  Equator  Co.  12  M.  R.  178;  Attwood 
v.  Fricot,  2  M.  R.  305;  Hess  v.  Winder,  12  M.  R.  217. 

Possession  is  a  question  of  law. — Jordan  v. 
Duke,  36  Pac.  896.  A  witness  must  testify  to  facts, 
and  it  is  for  the  Court  to  say  whether  these  facts 
amount  to  possession. — Thistle  v.  Frostburg  Co.  10 
Mel.  129.  But  the  uniform  holding  of  the  United 
States  Court,  at  Denver,  has  been  that  the  question 
as  to  possession  may  be  asked  directly,  leaving  it  to 
the  cross-examination  to  bring  out  whether  the  facts 
stated  amount  to  possession,  and  this  is  the  more 
sensible  practice. 

The  possession  of  the  surface  enclosing  the  apex 
is  the  possession  of  the  vein  wherever  the  dip  may 
carry  it. — Montana  Co.  v.  St.  Louis  Co.  102  Fed.  431. 
A  prospector  drilling  for  oil  is  in  possession  and 
ejectment  is  the  remedy  to  test  his  right  of  posses- 
sion.— Cosmos  Co.  v.  Gray  Eagle  Co.  112  Fed.  //. 

An  Equitable  Defense  may  be  set  up  in  eject- 
ment.— South  End  Co.  v.  Tinney,  ,'?•>  Pac.  89.     Such 


318  EJECTMENT. 

defense  must  be  specially  pleaded. — Brady  v.  Husby, 
33  Pac.  801. 

Title  in  Third  Party. 

The  rule  that  plaintiff  must  recover  on  the 
strength  of  his  own  title  does  not  prevail  in  an  ac- 
tion between  possessory  claimants. — Strepey  v.  Stark, 
7  Colo.  622;  11  M.  R.  28;  Murray  Co.  v.  Havenor,  (M 
Pac.  762.  Otherwise,  as  to  parties  claiming  under 
patent,  or  in  ordinary  contests  as  to  legal  title. — 
Dyke  v.  Whyte,  17  Colo:  296.  A  patentee  has  no 
right  to  disturb  any  person  in  possession  of  ground 
under  but  excluded  from  his  patent. — Reynolds  v. 
Iron  Silver  Co.  lo  M.  R.  591. 

The  Location  Certificate  as  Evidence — Presump- 
tion of  Location. 

Where  a  plaintiff  has  been  in  actual  possession 
of  his  claim  for  the  full  period  of  the  Statute  of 
Limitations  a  presumption  may  be  indulged  as 
against  a  wrongdoer  at  least,  that  his  location  was 
regularly  made,  without  putting  him  to  proof  of  its 
successive  steps. — Harris  v.  Equator  Co.  supra. 
When  the  location  has  been  made  for  a  considerable 
time  and  is  held  by  bona  fide  purchasers  the  location 
certificate  is  prima  facie  evidence  of  discovery  and 
location. — Cheesman  v.  Hart,  16  M.  R.  263.  To  same 
effect.— Yreka  Co.  v.  Knight,  65  Pac.  1092.  In 
Cheesman  v.  Shreeve,  40  Fed.  791 ;  17  M.  R.  — ,  it  was 
held  presumptive  evidence  of  discovery.  It  is  evidence 
of  the  performance  of  all  the  things  which  the  Stat- 
ute requires  it  to  recite. — Strepey  v.  Stark,  7  Colo. 
619.  But  that  it  is  in  general  presumptive  proof 
of  location  seems  to  be  doubted  in  Niles  v.  Kennan, 
62  Pac.  360. 

The  defendant  may  show  that  plaintiff's  discov- 
ery was  upon  land  not  subject  to  location  and  the 
claim  therefore  invalid. — Girard  v.  Carson,  44  Pac- 
•~>08.  See  citations  p.  39. 

Ejectment  Lies  to  Recover  Ditch  and  water  rights. 

— Integral  Co.  v.  Altoona  Co.  75  Fed.  379. 


FORCIBLE  ENTRY.  319 

Non-Joinder  of  Co-Tenant. 

It  is  no  defense  that  all  of  plaintiff's  co-owners 
are  not  made  parties  to  the  suit. — Weese  v.  Barker, 
7  Colo.  178;  Erhardt  v.  Boaro,  15  M.  R.  473. 

Allowance  for  Improvements. 

A  defendant  holding  by  ~bona>  fide  claim  of  title 
is  by  Statute  in  instances  to  be  allowed  for  improve- 
ments. But  mining  is  not  necessarily  an  improve- 
ment.— Bacon  v.  Thornton,  51  Pac.  153. 


FORCIBLE  ENTRY. 


The  acts  concerning  forcible  entry  and  unlawful 
detainer  (M.  A.  8.  Chap.  53)  apply  to  possessory  as 
well  as  other  claims:  but  those  acts  are  so  involved, 
and  so  abrupt  and  cruel  in  their  attempt  to  substi- 
tute haste  for  deliberation,  that  they  result  in  driv« 
ing  to  appeals  and  in  the  end  to  more  lengthy  and 
costly  litigation  than  where  ejectment  is  resorted 
to  in  the  first  instance. 

Like  Acts  in  other  states — the  repeated  attempts 
by  summary  process  to  deprive  a  defendant  of  his  day 
in  court  under  pretense  of  doing  speedy  justice — 
are  open  to  the  same  comment.  Except  as  against 
a  tenant  holding  %  over  in  defiance  of  his  lease  or  re- 
fusing the  payment  of  royalty  or  rent,  this  action 
will  always  be  found  a  dangerous  substitute  for  the 
ordinary  action  of  ejectment.  Especially  is  this  the 
case  where  actions  are  commenced  before  Justices  of 
the  Peace,  before  whom  proceedings  are  so  vexa- 
tious, oppressive,  and  attended  with  so  much  heavier 
costs-  than  such  as  accrue  in  Courts  of  Record,  that 
it  is  rarely  advisable  to  seek  the  remedy  for  any 
wrong,  in  any  form  of  action,  before  them. 


320  MEASURE  OF  DAMAGES. 


MEASURE  OF  DAMAGES. 


Trespass  for  Ore  Taken. 

The  true  measure  of  damages  depends  upon  cir- 
cumstances of  aggravation,  ranging  from  the  profits 
of  working  to  the  gross  value  of  the  ore  after  break- 
ing from  the  stope. — Empire  Co.  v.  Bonanza  Co.  67 
Cal.  406;  In  re  United  Merthyr  Co.  10  M.  R.  153;  Ege 
v.  Kille,  Id.  212. 

The  cost  of  mining  should  be  deducted  from  the 
value  of  the  ore  in  all  cases  where  neither  fraud 
nor  culpable  negligence  constitute  any  element  of 
the  case. — Waters  v.  Stevenson,  10  M.  R.  240;  29  Am. 
Rep.  293;  Durant  Co.  v.  Percy  Co.  93  Fed.  166. 

Under  ordinary  circumstances  the  just  rule  of 
compensation  is  the  value  of  the  rock,  coal,  ore  or  oil 
before  the  mining  or  quarrying  began — the  value  in 
place. — Dougherty  v.  Chesnutt,  5  8.  W.  444,'  Coal 
Creek  Co.  v.  Moses,  15  M.  R.  544;  Ege  v.  Kille,  10 
M.  R.  212;  Dyke  v.  Nat.  Tr.  Co.  49  N.  Y.  8.  180.  And 
where  the  ore  has  been  taken  by  defendant's  lessee, 
the  royalty  may  be  taken  as  the  net  profit. — Colo. 
Cent.  Co.  v.  Turck,  70  Fed.  294;  Neiv  Dunderberg  Co. 
v.  Old,  97  Fed.  150. 

In  willful  trespass,  or  where  the  defendant  has 
mingled  the  ore  or  taken  any  steps  to  prevent  ulti- 
mate proof  of  its  value,  these  acts  are  to  be  taken 
against  the  defendant. — Cheesman  v.  Shreeve,  40 
Fed.  788;  even  so  far  as  to  throw  the  burden  of 
proving  the  value  upon  the  defendant. — Little  Pgh. 
Co.  v.  Little  Chief  Co.  15  M.  R.  655;  St.  Glair  v. 
Cash  Co.  47  Pac.  466;  and  in  cases  of  fraud  a  co- 
tenant  may  even  be  denied  plaintiff's  share  of  legiti- 
mate expenses. — Foster  v.  Weaver,  15  M.  R.  551.  A 
wrongdoer  is  not  entitled  to  cost  of  mining. — Benson 
Co.  v.  Alta  Co.  145  U.  8.  428;  Sunnyside  Co.  v.  Reitz, 
39  N.  E.  541. 


MEASURE  OF  DAMAGES.  321 

Plaintiff  may  prove  assays  of  ore  left  standing 
and  computations  of  what  was  taken  from  the  stopes 
— but  an  averaging  estimate  of  how  much  each  miner 
might  have  broken  is  too  remote. — Golden  R.  Co.  v. 
Buxton  Co.  97  Fed.  413. 

In  Omaha  Co.  v.  Tabor,  16  M.  R.  184,  the  Court 
adopted  the  value  of  the  ore  when  it  became  a  chat- 
tel by  severance  from  the  realty.  That  is  the  rule 
where  there  was  no  bona  fide  claim  of  right,  and 
under  the  circumstances  of  that  case  was  an  ex- 
treme ruling  and  against  the  almost  unbroken  weight 
of  authority. 

Where  the  Mine  is  Under  Lease  and  ore  is  taken 
by  trespass,  the  lessee  can  recover  in  trover  or 
trespass.— -Hartford  Co.  v.  Cambria  Co.  53  N.  W. 
4;  Attersoll  v.  Stevens,  10  M.  R.  67.  And  the 
lessor  may  recover  to  the  extent  of  his  royalty. 
—StocTcbridge  Co.  v.  Cone  Works,  6  M.  R.  317.  Where 
the  lessor  treats  disputed  ground  as  his  own  he  is 
liable  to  the  owner  for  coal  taken  by  his  lessee. — 
Dundas  v.  Muhlenberg,  14  M.  R.  437.  The  same  as 
to  an  oil  lease  to  the  full  value  of  the  leasehold  in- 
terest.— Duffield  v.  Rosenzweig,  23  Atl.  4> 

No  Deduction  for  Developments. 

By  Statute,  §  272  of  the  Code,  in  suits  for  mesne 
profits  after  recovery  in  ejectment  (which  does  not 
necessarily  include  every  trespass  suit)  "offsets"  are 
not  to  be  allowed  for  "timbering,  cribbing,  improve- 
ments or  developments."  (Acts  1895,  p.  1^1.)  Where 
a  Legislature  attempts  to  fix  the  measure  of  damages 
it  is  a  close  approach  to  the  exercise  by  the  Legis- 
lature of  the  power  belonging  exclusively  to  the 
courts. 

Special  Injury  to  the  Mine  cannot,  in  trespass,  be 
proved  as  damages,  unless  specially  declared  for. — 
Patchen  v.  Keeley,  14  Pae.  347. 

Mesne  Profits. 

At  common  law  a  plaintiff  out  of  possession 
could  not  recover  for  the  ore  taken  until  he  had  re- 

11 


322  NEGLIGENCE. 

covered  possession  by  ejectment. — Hugunin  v.  Mc- 
Cunniff,  14  M.  R.  463.  Under  the  Colorado  Code  the 
practice  has  been  to  sue  for  such  damages  in  the 
same  action  or  by  separate  actions  after  recovery. 
For  such  second  action  the  Statute  seems  to  plainly 
provide.  Code  Sec.  272  (and  Amendments,  1895,  p. 
141,  1899,  p.  161).  Or  he  may  recover  in  a  single 
action.— Acts  1893,  p.  349.  The  case  of  Ghost  v. 
Shuman,  4  Colo.  App.  88,  sometimes  cited  on  this 
point,  makes  no  mention  of  section  272  and  its  spe- 
cial reference  to  a  second  suit  in  case  of  mining 
trespasses. 

In  Miscellaneous  Cases. 

For  the  measure  of  damages  on  refusal  to  ac- 
cept deed,  see  Gilpin  M.  Go.  v.  Drake,  8+ Colo.  586. 
On  breach  of  contract  to  lease. — Chambers  v.  Brown, 
28  N.  W.  561.  In  cases  of  negligence. — Moody  v. 
McDonald,  2  M.  R.  187.  On  tunnel  contract. — Monroe 
v.  Northern  Pac.  Co.  Id.  652.  Against  lessor  for 
mining  the  ground  leased.- — Chamberlain  v.  Collin- 
son,  9  M.  R.  37.  Against  lessee  for  breach  of  cove- 
nants to  mine. — Cleopatra  Co.  v.  Dickinson,  68  Pac. 
456;  Colo.  Fuel  Co.  v.  Pryor,  25  Colo.  540.  Purchase 
of  stock  induced  by  defendant's  false  representations. 
— Smith  v.  Bolles,  16  M.  R.  159;  Warner  v.  Benjamin, 
62  N.  W.  179.  Conversion  of  stock  of  no  fixed  market 
value. — MoynaTian  v.  Prentiss,  51  Pac.  94- 

On  sale  of  coal. — Osgood  v.  Bander,  39  N.  W. 
887.  For  stoppage  of  work  on  contract  to  sink,  be- 
fore shaft  complete. — Mooney  v.  York  Co.  46  N.  W. 
376. 


ACTIONS  BASED  ON  NEGLIGENCE,  ACCI- 
DENTS, ETC. 


The  same  rule  governs  the  liabilities  of  own- 
ers, lessees  and  contractors  in  case  of  accident  to 
employes,  as  controls  in  other  cases  where  the  rela- 
tion of  master  and  servant  exists  and  negligence  is 


NEGLIGENCE.  323 

the  foundation  of  the  action. — New  York  Co.  v. 
Rogers,  11  Colo.  6;  Me  Andrews  v.  Burns,  39  N.  J.  L. 
Ill;  Perry  v.  Ricketts,  9  M.  R.  687;  Hall  v.  Johnson, 
9  M.  R.  68^;  Quincy  Co.  v.  Hood,  12  M.  R.  148;  Strah- 
lendorf  v.  Rosenthal,  10  M.  R.  676. 

The  Degree  of  Care  required  of  the  master  is  fully 

stated  in  Southwest  Co.  v.  Smith,  85  Va.  806;  17  Am. 
St.  R.  59.  The  miner  has  no  recovery  for  the  ordi- 
nary and  unavoidable  risks  of  the  business. — Chero- 
kee Co.  v.  Britton,  45  Pac.  101. 

Instances  of  Responsibility. 

He  is  liable  for  failure  to  timber  dangerous 
ground. — Trihay  v.  Brooklyn  Co.  15  M.  R.  535; 
Sampson  Co.  v.  Schaad,  15  Colo.  197.  Or  for  failure 
to  observe  his  own  code  of  signals. — Silver  Cord  Co. 
v.  McDonald,  16  M.  R.  171.  Or  defective  rope  or 
hoisting  gear. — New  York  Co.  v.  Rogers,  11  Colo.  6; 
Myers  v.  Hudson  Co.  150  Mass.  125;  Donnelly  v. 
Booth  Co.  37  Atl.  874.  Or  for  scales,  the  fall  of 
which  should  have  been  foreseen. — Buckley  v.  Port 
Henry  Co.  2  N.  Y.  S.  133;  U.  P.  Ry.  v.  Jarvi,  53 
Fed.  65.  For  a  preventable  cave. — James  v.  Emmett 
Co.  21  N.  W.  361;  Pantzar  v.  Tilly  Co.  99  N.  Y.  368. 
For  rotten  ladder. — Reese  v.  Morgan  Co.  54  Pac.  759. 
For  sending  men  into  a  blind  upraise  known  to  be 
filled  with  bad  air. — Portland  Co.  v.  Flaherty,  111 
Fed.  312. 

The  mine  owner  must  look  to  the  proper  sup- 
port of  his  gangways  and  to  the  timbering  and  to 
the  machinery  above. — Quincy  Co.  v.  Hood,  supra; 
Strahlendorf  v.  Rosenthal,  supra;  Ardesco  Co.  v. 
Gilson,  10  M.  R.  669;  Soyer  v.  Great  Falls  Co.  37 
Pac.  838.  Failure  to  examine  gangways. — Ashland 
Co.  v.  Wallace,  42  S.  W.  744. 

The  miner  has  a  right  to  assume  that  the  roof 
is  safe.— Vanesse  v.  Catsl)urg  Co.  28  Atl.  200.  The 
same  as  to  the  machinery. — Myers  v.  Hudson  Co. 
150  Mass.  125;  15  Am.  St.  R.  176. 

The  owner  is  liable  for  accidents  resulting  from 
experimenting  with  new  and  untried  explosives. — 


324  NEGLIGENCE. 

Smith  v.  Oxford  Go.  2  M.  R.  208.  Or  for  setting 
new  employes  at-  work  fitting  caps. — Rillston  v. 
Mather,  44  Fed  743;  same  case,  156  U.  S.  391.  Or 
storing  magazines  too  close  to  works. — Bean  v. 
Pioneer  Co.  56  Am.  R.  106.  He  must  use  all  appli- 
ances readily  obtainable  known  to  science  to  prevent 
gas  explosions. — Western  Co.  v.  Berberich,  94  Fed. 
329. 

He  is  responsible  when  the  accident  can  be 
traced  directly  to  his  own  fault  or  the  fault  of  his 
partner. — Mellors  v.  Shaw,  9  M.  R.  678.  And  gen- 
erally where  traceable  to  the  fault  of  the  superin- 
tendent or  foreman. 

Misfire. 

Consideration  of  what  is  reasonable  time  to  wait 
for  blast. — Eureka  Co.  v.  Bass,  8  So.  216.  Full  case 
on. — Anderson  v.  Daly  Co.  50  Pac.  815. 

The  Lessor  is  not  liable  for  the  lessee's  negligence. 
— Smith  v.  Belshaw,  26  Pac.  834.  Otherwise,  when  he 
lets  machinery  already  out  of  condition. — 1  Thomp. 
Neg.  317. 

Under  Contractor. 

The  mine  owner  is  not  in  general  liable  for  ac- 
cidents occurring  under  a  contractor. — Lendberg  v. 
Brotherton  Co.  42  N.  W.  675;  Welsh  v.  Lehigh  Co.  5 
Atl.  48. 

Contributory  Negligence — Co-Employee. 

The  mine  owner,  as  a  general  rule,  is  not  liable 
when  the  accident  was  in  whole  or  in  part  attributa- 
ble to  the  negligence  of  the  party  injured  or  to  the 
carelessness  of  a  fellow  workman  not  occupying  a 
directing  or  superior  position  to  the  party  injured. 
— Kevern  v.  Prov.  Co.  70  Cal.  392;  Ardesco  Co.  v. 
Gilson,  10  M.  R.  669;  Berea  Co.  v.  Kraft,  Id.  16; 
Trihay  v.  Brooklyn  Co.  15  M.  R.  535;  Colo.  Midland 
Ry.  v.  O'Brien,  16  Colo.  220.  It  is  not  necessarily 
contributory  negligence  to  use  fire  for  comfort  when 
dynamite  is  being  thawed. — Bertha  Co.  v.  Martin, 
22  8.  E.  869. 


REPLEVIN.  325 

Negligence  of  fellow  servant  is  no  defense  if 
the  master  knew  of  the  danger. — Hancock  v.  Keene, 
32  N.  E.  329.  That  the  accident  was  chargeable  to  a 
co-employe  is  no  longer  a  defense  in  Colorado. — 
Acts  1901,  p.  161. 

Remaining  in  Employ  After  Danger  Known  is 
held  in  instances  to  be  a  defense.  It  is  sometimes 
classed  as  contributory  negligence,  though  this  is  a 
mere  abuse  of  terms:  it  is  only  acquiescence,  per- 
haps from  moral  necessity,  in  the  negligence  of  the 
master,  perhaps  criminal  in  degree. — Lord  v.  Pueblo 
Co.  12  Colo.  390;  Davis  v.  Graham,  2  Colo.  App.  210. 
It  is  hard  for  the  reasoning  powers  of  man  to  con- 
clude that  this  does  not  amount  to  a  premium  on 
negligence. 

If  the  master  promise  to  repair,  the  workman 
may  rely  on  the  promise  and  remain. — Rogers  v. 
Leyden,  26  N.  E.  210. 


EEPLEVIN. 


Ore  Taken  Under  Claim  of  Title, 

Where  a  party  is  in  possession  of  a  mine  under 
a  'bond  fide  claim  of  title,  the  party  out  of  possession 
cannot  maintain,  replevin,  or  an  action  un-der  the 
code  in  the  nature  of  replevin,  for  the  ore  taken 
from  the  same;  because  the  trial  of  the  right  of 
property  in  the  ore  in  such  case  would  necessarily 
involve  the  trial  of  the  title  to  real  estate.  The  cases 
sustaining  this  proposition  are  cited  ante  p.  310. 

In  a  case  of  replevin  for  ore  in  Montana  which 
brought  up  the  question  of  apex  rights,  the  Court 
took  the  novel  position  that  it  involved  no  dispute 
as  to  title  and  was  only  a  matter  of  boundaries. — 
Driscoll  v.  Dumooody,  16  Pac.  726. 

Defendant  cannot  re-replevin  ore. — Morris  v. 
DeWitt,  12  M.  R.  680. 


326  INJUNCTION. 


INJUNCTION. 


At  some  stage  of  its  progress  a  contest  over  a 
working  mine  is  almost  sure  to  suggest  this  sort  of 
relief.  It  is  true  that  the  prayer  for  an  injunction 
is  always  to  a  certain  extent  addressed  to  the  dis- 
cretion of  the  Court,  but  the  exercise  of  this  discre- 
tion does  not  imply  the  total  absence  of  principles 
applicable  to  the  exercise  of  this  discretion. 

The  Ground  for  the  Application  of  Injunctive 
relief  is  that  the  property  may  be  preserved  pend- 
ing litigation  for  the  ultimate  use  of  the  right- 
ful owner  and  may  not  in  the  meanwhile  be  de- 
stroyed by  a  trespasser.  But  the  pendency  of  liti- 
gation is  not  of  itself  sufficient;  the  complainant 
must  go  farther  and  show  that  his  case  is  based 
upon  substantial  facts,  and  that  there  is  a  probabil- 
ity of  a  decision  in  his  favor  when  the  cause  is 
tried  on  its  merits.  As  he  asks  relief  in  advance  of 
the  trial,  it  is  only  just  that  he  make  it  appear  that 
the  trial  When  had  will  show  that  he  was  in  fact 
entitled  to  this  protection;  and  especially  so  when 
a  decree  of  this  sort,  wrongfully  issued,  may  be  and 
often  is  as  great  an  injury  to  the  defendant  as  the 
conversion  of  some  of  the  ore  is  to  a  rightful  com- 
plainant.— Capner  v.  Flemington  Co.  7  M.  R.  263; 
Clavering  v.  Clavering,  14  M.  R.  358;  Irwin  v.  David- 
son, 7  M.  R.  237. 

Parties. 

One  who  has  a  contract  to  sink  an  oil  well 
entered  into  before  the  suit,  is  not  bound  by  an  in- 
junction against  his  employer. — Dunham  v.  Seiber- 
ling,  39  N.  E.  1044.  Lessees  should  be  made  parties. 
—High  Inj.  §  690. 


INJUNCTION.  327 

Laches. 

Further,  to  entitle  him  to  injunctive  relief  the 
complainant  must  not  have  been  guilty  of  unreason- 
able delay  nor  have  allowed  the  defendant  to  have 
proceeded  without  objection  to  expend  money  in 
good  faith  upon  the  property. — Klein  v.  Davis,  27 
Pac.  511;  Parrott  v.  Palmer,  3  M.  &  K.  632;  Real  del 
Monte  Co.  v.  Pond  Co.  7  M.  R.  4-52;  Emma  Mine  case, 
Id.  493;  Field  v.  Beaumont,  Id.  251 ;  Mammoth  Co.'s 
Appeal,  Id.  460;  Patterson  v.  Hewitt,  66  Pac.  552. 

The  Solvency  or  Insolvency  of  the  defendant,  as 

well  as  many  other  circumstances  applicable  to  par- 
ticular cases,  may  be  taken  into  account,  but  is  not  a 
controlling  consideration  when  the  case  is  otherwise 
clear. — Lockwood  v.  Lunsford,  7  M.  R.  532;  Hamilton 
v.  Ely,  4  Gill,  34;  Sierra  Co.  v.  Sears,  7  M.  R.  549; 
Moore  v.  Ferrell,  Id.  281;  Irwin  v.  Davidson,  Id.  231 ; 
Parker  v.  Furlong,  62  Pac.  490. 

Title  in  Issue. 

In  cases  where  a  determination  of  the  legal  title 
is  necessary  to  finally  decide  the  rights  of  the  par- 
ties, the  complaint  should  be  framed  to  procure  an 
issue  of  that  sort;  or  a  previous  suit  must  be  pend- 
ing which  will  result  in  determining  the  title;  or  a  . 
separate  action  must  be  brought  for  such  purpose. 
In  the  United  States  Courts  where  law  and  equity 
distinctions  are  strictly  maintained,  separate  issues 
must  always  be  made.  If  no  suit  be  pending  to  try 
title  the  court  may  order  such  suit  to  be  brought  as 
a  condition  precedent  to  the  granting  of  the  writ. — 
Merced  Co.  v.  Fremont,  7  M.  R.  313;  U.  S.  v.  Parrott, 
Id.  335;  Grey  v.  Northumberland,  Id.  250;  Old  Tele- 
graph Co.  v.  Central  Co.  Id.  555.  And  such  has 
been  the  common  practice  in  the  Federal  Court. — 
Stevens  v.  Williams,  5  M.  R.  449. 

A  plaintiff  in  possession  is  not  required  to  bring 
his  action  at  law. — Allen  v.  Dunlap,  33  Pac.  675.  The 
writ  may  issue  to  preserve  the  property  when  the 
issue  is  between  contestants  in  an  equity  case. — St. 
Louis  Co.  v.  Montana  Co.  58  Fed.  129.  The  writ  will 


328  INJUNCTION. 

not  go  when  the  plaintiff's  title  is  not  clear  and  the 
legal  remedy  is  adequate. — Smith  v.  Jamison,  3  8. 
W.  212. 

Preservation  of  the  Property. 

The  gist  of  the  case  and  the  foundation  of  equity 
jurisdiction  is  to  save  the  property  from  destruc- 
tion pending  the  litigation. — Thomas  v.  Oakley,  7 
M.  R.  254;  Bracken  v.  Preston,  Id.  267;  Merced  Co. 
v.  Fremont,  Id.  313;  Moore  v.  Ferrell,  7  M.  R.  28 /; 
Hess  v.  Winder,  34  Col.  270;  West  Point  Co.  v.  Rey- 
mert,  7  M.  R.  528;  U.  8.  v.  Gear,  3  How.  132;  14  M.  R. 
403;  Chapman  v.  Toy  Long,  1  M.  R.  497. 

Case  Sufficient  to  Warrant  Injunction. 

To  reduce  the  matter  to  terms  it  may  be  stated 
as  a  proposition,  supported  by  the  weight  of  author- 
ity, that  a  temporary  injunction,  pending  suit  to 
try  title,  will  issue  as  of  right,  to  restrain  the  work- 
ing of  a  mine,  upon  a  case  whiah  shows,  after  hear- 
ing on  bill,  answer  and  testimony: 

1.  That   the   complainant   has   the    legal    title   or   the 
elder  and  better  possessory   title  ;  or  at  least  such  showing 
of  title   ns   would,   if  proved  as   stated   in  the   bill,   support 
the  verdict  of  a  jury  in  an  action  of  ejectment ;  and  where 
the  defense  suggested  in  the  answer  does  not  show  a  recovery 
by  plaintiff  impossible  as  a  proposition  of  law  ;  and  the  affi- 
davits   or   depositions    being   considered   the    weight    of    evi- 
dence is  with   complainant   upon  the  question   of  fact ;   and 
that  the  defendant   is   in  possession   taking  out  ore    (which 
of  itself  is  a  destruction  of  the  estate)   in  such  considerable 
quantity  as  to  threaten  irreparable  injury. 

St.  Louis  Co.  v.  Montana  Co.  58  Fed.  129;  Par- 
rot Co.  v.  Heinze,  62  Pac.  818;  More  v.  Massini,  7 
M.  R.  455;  Magnet  Co.  v.  Page,  Id.  540;  Lockwood  v. 
Lunsford,  Id.  532;  Anderson  v.  Harvey,  Id.  291;  Er- 
hardt  v.  Boaro,  15  M.  R.  447;  Anaconda  Co.  v.  Butte 
Co.  43  Pac.  924. 

2.  That  the  bill  was  brought  without  needless  delay, 
and  that  the  defendant  has  not  been  allowed  or  encouraged 
to  expend  large  sums  of  money  upon  the  property,  which  it 
was  in  the  power  of  the  complainant  to  prevent. 

Ernest  v.  Vivian,  8  M.  R.  205;  Klein  v.  Davis,  27 
Pac.  511,  and  other  cases  above  cited. 


INJUNCTION.  329 

• 

And  as  matters  more  particularly  addressed  to 
the  discretion  of  the  court  are  the  insolvency  of  de- 
fendant, threats  of  violence  and  danger  of  personal 
collisions,  the  fact  of  reckless  mining  without  re- 
gard to  the  permanent  preservation  of  the  mine,  etc. 

The  above  propositions  are  made  upon  the  sup- 
position of  an  application  for  injunction  after  notice, 
appearance  and  answer. 

It  is  an  abuse  of  discretion  to  enjoin  the  work- 
ing of  a  vein  on  the  mere  chance  that  it  may  apex 
outside  defendant's  ground. — Montana  Co.  v.  Boston 
Co.  56  Pac.  120. 

The  court  will  not  enjoin  a  mere  prospect. — 
Spotts  v.  Gilchrist,  cited  in  Morrison's  Colo.  Dig.  p.  9 
537.  Nor  forbid  working  for  exploration  purposes. 
— St.  Louis  Co.  v.  Montana  Co.  58  Fed.  129.  And  a 
writ  will  not  be  allowed  against  "working  any  vein 
having  its  apex  in  complainant's  claim."  This  would 
require  defendants  to  ascertain  from  w'hat  acts  they 
are  enjoined. — Id. 

Injuries  Other  than  Mining  Ore. 

In  a  proper  case  an  injunction  will  issue  to  re- 
strain deposit  of  tailings. — Fuller  v.  Swan  River  Co. 
16  M.  R.  252.  Or  the  destruction  of  flumes.— Power 
v.  Klein,  27  Pac.  513.  Or  to  stay  the  running  of  an 
incline  drift  to  cut  off  an  adversary's  tunnel. — Mon- 
tana Co.  v.  Clarlc,  16  M.  R.  80.  Against  assaulting 
workmen  and  threats  to  blow  up  the  mine. — Ran- 
king App.  16  Atl.  82.  Against  sale  of  mining  stock 
on  the  ground  of  its  fluctuating  value. — McLure  v. 
Sherman,  70  Fed.  190.  Refused  against  cutting  tim- 
ber on  claim  where  defendant  solvent  and  the  tim- 
ber of  no  special  need  to  the  mine. — Heaney  v.  Bulte 
Co.  27  Pac.  379.  Refused  against  use  of  adits  under- 
lying plaintiff's  ground. — Boston  Co.  v.  Montana  Co. 
59  Pac.  919. 

Refused  against  upper  mill  where  it  is  using  all 
possible  effort  to  restrain  its  tailings. — Otaheite  Co. 
v.  Dean,  102  Fed.  929.  It  may  be  allowed  against 
an  option  holder  in  default  on  his  instalments. — 


330  INJUNCTION. 

* 

Williams  v.  Long,  61  Pac.  1087.  A  defendant  can- 
not be  enjoined  from  "entering  or  trespassing  upon" 
ground  of  which  he  is  already  in  possession. — Id. 

Courts  will  not  enjoin  in  cases  charged  with 
doubt  or  where,  on  the  plaintiff's  showing,  final  re- 
lief would  not  be  granted. — Crescent  Go.  v.  Silver 
King  Co.  45  Pac.  1093.  Though  to  enjoin  they  will 
not  require  so  strong  a  case  as  on  final  hearing. — 
Buskirk  v.  King,  72  Fed.  22.  And  it  may  be  allowed 
although  the  proving  up  is  not  yet  complete. — 
Maloney  v.  King,  64  Pac.  351. 

Practice — Answer  Not  Conclusive. 

As  a  rule,  in  equity  pleadings  where  the  de- 
fendant denies  the  allegations  of  the  bill  in  terms, 
the  writ  will  not  issue;  but  where  the  bill  is  sup- 
ported by  affidavits,  and  is  filed  to  restrain  irrep- 
arable mischief  by  the  working  of  a  mine,  and  the 
bill,  answer  and  supporting  affidavits  being  consid- 
ered together,  the  case  appears  as  stated — for  the 
preservation  of  the  subject  matter  of  controversy 
and  as  a  rule  limited  in  its  application  to  mining 
cases  and  others  standing  on  analogous  facts,  where 
the  substance  and  not  merely  the  use  is  in  jeopardy 
— the  answer  is  not  to  be  taken  as  conclusive,  if 
there  remain  to  the  complainant  such  a  showing  as 
is  above  stated. 

The  Venue  is  usually  fixed  by  the  code  and  com- 
monly in  the  county  where  the  land  lies.  When  not 
so  fixed,  the  court  having  jurisdiction  over  the  person 
may  enjoin  the  working  of  a  mine  in  another  county. 
— Jennings  v.  Beale,  27  Atl.  948.  But  not  in  another 
State. — Lindsley  v.  Union  Co.  66  Pac.  382;  Johnstown 
Go.  v.  Butte  Co.  70  N.  Y.  Sup.  257. 

Notice. 

The  usual  period  of  notice  to  defendant  is  five 
days,  but  the  statute  merely  requires  a  notice  "in 
proportion  to  the  urgency  of  the  case."  (Code  §  148.) 
And  where  the  defendant  prays  further  time  to  an- 


INJUNCTION.  331 

swer,  it  is  usual,  on  slight  showing,  to  grant  a  re- 
straining order  or  preliminary  writ. 

In  many  States  the  writ  of  injunction  issues  at 
once  upon  complainant's  showing,  and  the  issue 
comes  before  the  court  upon  motion  to  dissolve.  In 
Colorado  a  reasonable  notice  is  required  to  be  given 
before  the  writ  can  issue,  which  allows  the  de- 
fendant opportunity  to  file  his  answer;  so  that  the 
argument  is  heard  usually  upon  the  original  motion 
for  an  injunction  and  not  upon  the  motion  to  dis- 
solve. 

FORM    OF    INJUNCTION    NOTICE. 

STATE  OF  COLORADO,  County  of  Lake:  ss. 

In  the  District  Court  of  said  county. 
Benjamin  8.  Phillips,  Plaintiff,  v.  Frank  M.  Taylor  and  John 

Harvey,  Defendants — Injunction. 
To  the  above-named  Defendants: 

You  and  each  of  you  will  take  notice  that  the  said 
plaintiff  will  apply  to  Hon.  Frank  Oivers,  Judge  of  said 
Court,  at  the  court  house,  in  Red  Cliff,  County  of  Eagle,  in 
said  State,  at  the  hour  of  two  o'clock  p.  m.  on  the  8th  day 
of  January,  A.  D.  1903,  or  as  soon  thereafter  as  couns^  can 
be  heard,  when  and  where  you  may  attend  as  you  see  fit — for 
a  writ  of  injunction  to  restrain  and  enjoin  you  and  each  of 
you,  your  agents,  attorneys,  lessees,  sub-lessees,  employees, 
and  all  persons  under  or  in  privity  with  you,  from  working, 
mining,  extracting  or  carrying  away  ore  from  the  Fair  De- 
ceiver Lode  Mining  Claim,  situate  on  Carbonate  Hill,  in  Cal- 
ifornia Mining  District,  in  said  County  of  Lake,  and  for 
other  relief ;  and  that  plaintiff  will  support  the  application 
by  the  complaint,  affidavits,  maps  and  documentary  evidence. 

J.  Stanley  Jones, 
Attorney  for  Plaintiff. 

Cripple  Creek,  January   2,  1903. 

Ex  Parte  Writs  to  enjoin  the  working  of  a  mine 

are  forbidden  by  statute. — Code  §  148.  This  provision 
has  been  evaded  by  praying  for  a  writ  to  forbid  re- 
moval or  sale  of  the  ore,  but  the  granting  of  such  a 
writ  without  notice  is  in  violation  of  the  spirit  of 
the  law. 

Practice  on  Hearing. 

The  notice  having  been  served,  the  complainant 
presents  his  bill  or  complaint  to  the  court,  or  judge 
at  chambers.  The  section  of  the  code  allowing  a 


332  INJUNCTION. 

hearing  before  filing  the  bill  having  been  greatly 
abused,  was  purposely  omitted  in  the  revision  of 
1887.  If  the  complaint  has  not  been  filed  or  a  copy 
served  with  the  notice,  it  is  usual  to  allow  defendant 
a  reasonable  time  to  answer. 

A  demurrer  is  rarely  interposed  to  a  bill  stating 
fully  the  complainant's  case.  And  if  interposed  and 
not  sustained,  the  defendant  is  not  in  position  to  ask 
for  time  to  answer  over. 

The  complainant  with  his  bill,  and  the  defendant 
with  his  answer,  may  file  affidavits  in  support  of  the 
bill  and  answer  respectively,  and  this  is  usually 
advisable. 

The  answer  being  presented,  and  denying  fully 
the  merits  of  the  bill,  the  court  may  either  hear  the 
case  on  bill  and  answer  with  their  supporting  affi- 
davits, or  refer  the  matter  to  a  master  or  referee  to 
take  testimony. 

Consideration  of  Eights  of  Lessee  losing  part  of 

term  by  injunction  against  work. — Stahl  v.  Van  Vleck, 
41  N.  E.  35. 

Working  Under  View  of  Court. 

Where  the  defendant  is  solvent  and  working  in 
miner-like  manner  and  the  case  of  plaintiff  not  free 
from  doubt,  it  is  not  unusual  for  the  court  to  allow 
the  defendant  to  keep  at  work  under  conditions  of 
accounting  to  the  court  at  monthly  intervals,  and  of 
submitting  to  the  inspection  of  some  person  on  be- 
half of  plaintiff  and  paying  the  net  or  gross  pro- 
ceeds into  court  according  to  the  nature  of  the  case 
and  the  framing  of  the  order. 

Injunction  After  Appeal  Taken. 

The  practice  is,  where  the  defendant  in  the  suit 
or  issue  at  law  obtains  judgment,  to  dissolve  the 
writ;  on  final  verdict  for  plaintiff  to  make  the  writ 
perpetual. — Boston  Co.  v.  Montana  Co.  66  Pac.  752. 
But  the  lower  court  has  the  power  (though  it  will 
only  be  exercised  in  a  case  where  the  appeal  has 
great  merit  or  doubt)  to  continue  the  injunction 


INJUNCTION.  333 

after  appeal  taken  by  the  plaintiff. — Bullion  Co.  v. 
Eureka  Co.  12  Pac.  660;  Maloney  v.  King,  71  Pac. 
469.  And  in  such  case  tfre  Supreme  Court  will 
not  interfere  with  it. — Sheaffer's  App.  100  Pa.  St. 
379.  But  the  appeal  itself  does  not  stay  the  writ 
or  the  suspension  of  the  writ. — Bullion  Co.  v. 
Eureka  Co.  15  M.  R.  449.  In  Erhardt  v.  Boaro, 
the  decision  giving  a  new  trial  to  the  party  who  was 
plaintiff  below,  the  Supreme  Court  directed  the 
Court  below  to  restore  the  injunction. — 15  M.  R.  447- 
The  appellate  Court  may  enjoin. — Ajax  Co.  v.  Tri- 
umph Co.  69  Pac.  523.  But  will  generally  leave  the 
matter  to  the  discretion  of  the  Court  below. — Steams- 
Roger  Co.  v.  Brown,  114  Fed.  940. 

Malicious  Prosecution  will  lie  for  suing  out  the 
writ  without  probable  cause,  and  damages,  even  to 
the  loss  of  anticipated  profits  may  be  allowed. — New- 
ark Co.  v.  Upson,  40  Oh.  St.  17.  But  it  will  not  lie 
where  there  was  probable  cause. — Wright  v.  Ascheim, 
17  Pac.  125. 

Abuse  of  the  Writ. 

Where  plaintiff,  having  obtained  injunction 
against  defendant's  mining,  entered  upon  and  took 
possession  of  the  defendant's  works,  restoration  was 
ordered,  on  motion. — Van  Zandt  v.  Argentine  Co.  ^8 
Fed.  770. 

Verification. 

Both  bill  and  answer  should  be  verified,  and  the 
answer  must  be  sworn  to  even  where  the  oath  of 
defendant  is  waived  by  the  proper  clause  to  that 
effect  in  the-  bill.  In  the  latter  case  the  oath  has 
not,  indeed,  the  technical  effect  of  a  sworn  answer, 
but  the  answer  has  its  proper  effect  as  a  plea  and 
the  further  effect  of  an  affidavit  of  the  defendant. 

Bond. 

The  fact  of  a  bond  being  filed  for  the  relief  of 
the  defendant,  if  injured,  is  a  protection  to  him  only 
in  theory.  A  bond  is  seldom  available  to  the  ulti- 
mate vindication  of  the  right;  it  is  no  lien;  the 


334  INJUNCTION. 

measure  of  damages  is  vexed  and  unsettled. — Dona- 
hue v.  Johnson,  37  Pac.  322;  Goosaw  Co.  v.  Carolina 
Co.  75  Fed.  860.  And  the  security  is  rarely  accessi- 
ble by  the  time  judgment  is  obtained.  In  the  Federal 
Courts  the  damages  may  be  assessed  upon  dissolu- 
tion of  the  writ. — Coosaiv  Co.  v.  Farmers  Co.  51 
Fed.  107. 

Mandatory  Writ. 

Section  159  of  the  Colorado  Code  provides  that 
where  possession  of  a  mine  is  taken  by  violence  or 
during  intervals  of  labor,  a  mandatory  writ  restor- 
ing possession  shall  issue.  This  Act,  passed  orig- 
inally in  1874,  has  been  found  effective  to  accomplish 
the  object  intended,  and  the  forcible  dispossession  of 
parties  working  a  mine  is  now  almost  unheard  of. 
It  was  construed  and  enforced  in  Sprague  v.  Locke, 
28  Pac.  142. 

A  similar  Act  has  been  sustained  by  the  Supreme 
Court  of  Dakota.— Cole  v.  Cady,  3  N.  W.  322. 

A  hearing  under  this  Act  goes  only  to  the  mat- 
ter of  the  unlawful  dispossession  of  the  plaintiff  and 
the  writ  leaves  the  parties  to  their  legal  rights  on 
all  other  questions  as  though  no  such  writ  had  is- 
sued. 

An  injunction  mandatory  in  effect  and  implying 
affirmative  acts  from  the  defendant  or  the  surrender 
of  possession  of  premises  is  an  unusual  sort  of  re- 
lief, to  be  granted  with  great  caution,  but  is  not  with- 
out precedent,  even  as  the  result  of  an  interlocu- 
tory decree,  and  without  the  aid  of  any  such  statute. 
— Cole  Co.  v.  Virginia  Co.  7  M.  R.  516;  Lehigh  Co.  v. 
Trotter,  10  Atl.  608;  Horsky  v.  Helena  Co.  33  Pac. 
689. 

The  object  of  the  Act  is  to  allow  the  court  or 
judge  to  grant  speedy  and  practical  relief  whenever 
a  party,  in  peaceable  possession,  has  been  ousted  by 
force  or  fraud,  without  regard  to  any  question,  ex- 
cept the  fact  and  manner  of  dispossession,  and  for 
this  object  it  has  been  held  valid  and  not  unconsti- 
tutional by  all  or  nearly  all  the  judges  at  nisi  prius, 


INJUNCTION.  335 

and  'has  remedied  one  of  the  greatest  evils  ever  com- 
plained of  in  the  mining  counties. 

The  Federal  Court  of  Colorado  District,  shortly 
after  the  admission  of  the  State,  declined  to  accept 
jurisdiction  under  this  Act.  But  under  the  principle 
laid  down  in  the  later  case  of  Aspen  Co.  v.  Ruclcer, 
28  Fed.  222,  as  to  United  States  Courts  exercising 
equity  powers  where  conferred  by  State  Statute  it  is 
likely  that  its  jurisdiction  in  a  case  with  proper 
parties  would  not  be  at  this  time  questioned. 

The  practice  under  the  statute  is  peculiar.  As 
soon  as  the  complaint  is  filed  the  court  is  directed 
ipso  facto  to  grant  a  temporary  writ  restraining  the 
working  of  the  claim.  Such  mandatory  legislative 
dictation  to  the  judiciary  is  of  very  doubtful  validity, 
seeming  to  take  away  all  judicial  discretion,  but 
whatever  be  its  proper  construction  the  other  pro- 
visions of  the  section  are  not  hurt  by  this  isolated 
provision;  they  refer  merely  to  the  division  of  time 
between  the  parties  for  taking  testimony  and  for 
a  speedy  adjudication,  and  forbid  the  use  of  such 
a  writ  in  favor  of  a  party  who  procured  his  own 
possession  by  violation  of  the  spirit  of  the  Act. 

In  framing  bills  under  this  Act  it  is  not  ad- 
visable to  pray  any  relief  further  than  the  prelim- 
inary writ  and  the  restoration  of  possession. 

At  least  five  days'  notice  of  application  must  be 
given;  the  form  on  page  331  is  sufficient  to  the  words 
"Writ  of  Injunction,"  after  which  conclude  as  fol- 
lows: 

Having  the  force  and  effect  of  a  writ  of  Restitution, 
restoring  plaintiff  to  the  possession  of  the  Fatality  Lode  Min- 
ing Claim,  situate  in  Grand  Island  Mining  District,  County 
of  Boulder,  and  for  a  Temporary  Injunction  restraining  the 
working  of  said  claim  in  accordance  with  the  terms  of  Sec- 
tion 159  of  the  Code,  and  that  plaintiff  will  support  the 
application  by  the  complaint  and  affidavits. 

Henry  C.  Charpiot, 

Denver }  January  2,  1903.  Attorney  for  Plaintiff. 

County  Courts  are  forbidden  by  Colorado  Stat- 
ute to  interfere  with  the  enjoyment,  working  or  pos- 
session of  a  mining  claim. — M.  A.  S.  §  7057. 


336  INSPECTION  AND  SURVEY. 


INSPECTION.  AND  SURVEY. 


Under  section  364  of  the  Colorado  Code  (and 
see  M.  A.  8.  §  3164,  3176),  either  party,  after  suit 
is  commenced,  is  allowed  the  privilege  of  a  survey 
and  inspection  of  the  premises  held  by  the  adverse 
party,  after  demand  and  refusal,  and  after  certain 
awkward  and  useless  notices  and  affidavits — the  sec- 
tion cited  being  probably  the  most  complete  instance 
of  involved  and  turgid  composition  ever  found  on  a 
statute  book. 

After  analysis  of  its  clauses  and  throwing  out 
such  portions  as  must  be  discarded  in  order  to  give 
grammatical  sense  to  the  paragraph,  it  seems  that 
the  procedure  is  as  follows: 

1.  A  demand  in  writing  is  made  for  permission 
to  survey  and   inspect  some   certain  portion  of   the 
premises. 

2.  The  opposite  party  has  three  days  in  which 
to  consent  to  or  refuse  this  demand. 

3.  A    refusal    being   had    and    the    three    days 
elapsed,  the  party  presents  to  the  court  or  judge  a 
petition  under  oath  in  which  he  must  set  forth  his 
interest  in  the  premises  and  "the  reason  why  it  is 
necessary"  that  he  should  have  such  survey  and  in- 
spection;  stating  the  demand  made  and  the  refusal, 
and  praying  an  order  for  survey  and  inspection. 

4.  The   court   or  judge   then   fixes   a   time   and 
place    for   hearing   this   petition    and    orders   notice 
thereof  to  be  served  at  least  three  days  before  the 
hearing4. 

5.  On  the  day  set  the  petition  is  argued  and  may 
be  aided  or  resisted  by  affidavits. 

6.  The  court  or  judge,  if  satisfied  that  the  "facts 
stated  in  the  petition  are  true,"  makes  the  order. 

Three  inspectors  are  allowed  to  accompany  the 
surveyors;  an  interference  with  them  is  made  con- 


INSPECTION  AND  SURVEY.  337 

tempt  and  the  costs  are  taxed  against  the  losing 
party. 

This  right  of  inspection  always  existed,  in 
courts  of  equity  at  least,  and  has  been  frequently  ex- 
ercised.— Ennor  v.  Barwell,  12  M.  R.  101;  Lonsdale 
v.  Curwen,  7  Id.  693;  Thornburah  v.  Savage  Co.  Id. 
667;  Dugdale  v.  Robertson,  13  M.  R.  662;  Lewis  v. 
Marsh,  8  Id.  14;  Bennitt  v.  Whitehouse,  Id.  17;  Stock- 
bridge  Co.  v.  Cone  Works,  6  Id.  317. 

A  statute  giving  power  to  compel  inspection  is 
not  unconstitutional  or  oppressive. — St.  Louis  Co. 
v.  Montana  Co.  23  Pac.  510;  152  U.  8.  160;  In  re  Carr, 
35  Pac.  818;  Howe's  Co.  v.  Howe's  Ass'n,  34  N.  Y. 
S.  848.  And  it  may  be  ordered  without  statute. — 
Blue  Bird  Co.  v.  Murray,  23  Pac.  1022. 

Cost  of  pumping  compelled  by  court  to  aid  in- 
spection, allowed  to  defendant  in  suit  on  injunction 
bond. — Tyler  Co.  v.  Last  Chance  Co.  90  Fed.  16. 

Survey  Without  Suit. 

A  statute  of  Montana  authorizes  a  survey  by  or- 
der of  Court  without  institution  of  suit  and  it  has 
been  held  that  this  is  due  process  of  law. — Montana 
Co.  v.  St.  Louis  Co.  152  U.  8.  160.  But  it  requires 
an  express  statute  to  allow  of  any  such  unusual  pro- 
cedure.— State  v.  Dist.  Court,  68  Pac.  570.  And  the 
Colorado  Statute  cannot  be  construed  to  allow  it 
without  a  supporting  suit  already  begun. — Peo.  v. 
De  France,  68  Pac.  267.  In  the  latter  case  from  Mon- 
tana, 68  Pac.  570,  the  Court  defines  the  essential  lim- 
itations and  conditions  which  should  be  imposed  on 
petitions  of  this  kind  very  different  from  the  sweep- 
ing language  in  which  they  allowed  it  as  a  right  in 
the  case  which  went  supra  to  the  U.  S.  Supreme 
Court.— 9  Mont.  300;  23  Pac.  510. 

It  may  be  allowed  when  defendant's  secret  work- 
ings are  approaching  plaintiff's. — State  v.  District 
Court,  68  Pac.  861. 

View  by  Jury. 

By  Colorado  Act  (1893,  p.  78)  either  party  may 
demand  that  the  jury  view  the  mine.  The  better 


338  STATUTE  OF  LIMITATIONS. 

practice  of  the  Federal  Court  in  the  same  State  is 
never  to  permit  it.  The  arguments  in  favor  of  a 
jury  view  in  such  cases  are  plausible,  but  not  enough 
to  offset  the  inconvenience  and  often  the  unfairness 
of  such  view.  Barring  exceptional  instances,  unless 
by  the  compulsion  of  a  Statute  it  ought  never  to  be 
allowed.  But  where  such  view  has  been  had  an  ap- 
pellate court  may  consider  it  conclusive  as  to  what 
the  jury  saw  on  the  ground. — Ormond  v.  Granite  Mt. 
Co.  28  Pac.  289. 


STATUTE  OF  LIMITATIONS. 


Suit  to  Annul  Patent. 

Sec.  8.  That  suits  by  the  United  States  to  vacate  and 
annul  any  patent  heretofore  issued  shall  only  be  brought 
within  five  years  from  the  passage  of  this  act,  and  suits  to 
vacate  and  annul  patents  hereafter  issued  shall  only  be 
brought  within  six  years  after  the  date  of  the  issuance  of 
such  patents.  *  *  *  — A.  O.  March  3,  1891,  Sup.  p.  939. 

The  above  Section  is  construed  in  Peabody  Co. 
v.  Gold  Hill  Co.  106  Fed.  241. 

Section  2332  of  the  United  States  Statutes  ex- 
pressly recognizes  possession  of  a  mining  claim  dur- 
ing the  period  fixed  by  the  State  Act  as  sufficient  to 
establish  a  right  thereto. — 420  Mining  Co.  v.  Bullion 
Co.  1  M.  R.  114.  And  a  claim  may  be  sued  for  under 
the  title  so  developed.— Glacier  Mt.  Co.  v.  Willis,  127 
U.  S.  472;  17  M.  R.  — .  Such  title  by  continued  pos- 
session is  equivalent  to  location. — Altoona  Co.  v.  In- 
tegral Co.  45  Pac.  1047. 

The  apparently  clear  construction  of  Sec.  2332 
is  that  in  ex  parte  cases  an  applicant  for  patent  may 
rely  on  his  continued  possession  without  producing 
abstract  of  title,  and  that  a  party  in  like  position 
could  adverse  on  same  ground  (29  L.  D.  401) ;  that 
in  the  suit  supporting  the  adverse  either  could  rely 
on  such  possession  until  defeated  by  the  production 
of  some  superior  title.  And  such  is  the  import  of  all 


STATUTE  OP  LIMITATIONS.  339 

the  above  citations.  But  in  Montana  it  has  been 
held  that  such  possession  gave  no  title,  and  that  the 
statute  was  a  mere  permission  to  support  patent  ap- 
plications on  possession,  in  non-contested  cases. — 
McCowan  v.  McLay,  40  Pac.  602. 

Seven  years  completes  the  bar  of  the  Statute  in 
Colorado,  3  M.  A.  S.  §  2923-2926,  and  all  taxes  must 
be  paid. — Eberville  v.  Leadville  Co.  64  Pac.  200.  The 
period  varies  in  every  state,  in  Nevada  being  as  low 
as  two  years. — South  End  Co.  v.  Tinney,  35  Pac.  89; 
38  Pac.  401.  And  in  Montana  only  one  year  as  to 
possessory  claims. — Horst  v.  Shea,  59  Pac.  364. 

The  possession  of  the  claim  must  be  open  and 
notorious. — Hamilton  v.  S.  Nevada  Co.  15  M.  R.  314. 

The  continuous  working  of  a  mine,  or  even  its 
working  during  successive  seasons  with  intervening 
seasons  during  which  the  mine  is  left  idle,  accord- 
ing to  the  custom  of  the  country,  is  as  complete  an 
adverse  possession  as  could  be  gained  by  agricultural 
operations  or  other  acts  of  possession. — Stephenson 
v.  Wilson,  13  M.  R.  408;  Wilson  v.  Henry,  1  M.  R. 
152,  157;  420  M.  Co.  v.  Bullion  Co.  11  M.  R.  608;  Bell 
v.  Denson,  56  Ala.  444- 

In  the  case  of  Harris  v.  Equator  Co.  cited  p.  317, 
it  was  intimated  in  the  opinion  of  the  court,  HAL- 
LETT  J.,  that  where  a  party  had  been  in  possession 
of  a  mining  claim  for  the  period  of  the  statute  of 
limitations,  such  fact  raised  a  presumption,  at  least 
against  a  wrongdoer,  that  he  held  under  a  valid  loca- 
tion, without  proof  of  the  various  acts  of  location, 
and  such  must  from  the  nature  of  things  be  the  ulti- 
mate decision  of  all  courts  upon  this  point. — See 
p.  70. 

As  to  the  running  of  the  statute  where  money 
is  to  be  paid  out  of  the  proceeds  of  the  mines,  see 
Charter  Oak  Co.  v.  Stephens,  15  Pac.  254. 

The  statute  of  limitations  does  not  begin  to  run 
while  the  title  is  in  the  United  States,  except  as 
between  parties  both  of  whom  claim  by  possessory 
title  only. — King  v.  Thomas,  12  Pac.  865;  Weibold 
v.  Davis,  14  Pac.  865.  Nor  until  the  patent  actually 


340  BUREAU  OF  MINES. 

issues. — South  End  Co.  v.  Tinney,  38  Pac.  401;  Clark 
v.  Barnard,  Id.  834. 

Adverse  possession  of  water  for  the  statutory 
period  gives  title. — Cox  v.  dough,  70  Gal.  345;  Her- 
riman  Co.  v.  Butterfield  Co.  57  Pac.  537. 

To  make  adverse  possession  available  there  must 
be: 

1.  The  occupation  or  use  of  the  land. 

2.  Claim  and  color  of  title. 

The  Colorado  Supreme  Court  has  ruled  that  a 
party  following  a  patented  vein  on  its  strike  beyond 
its  side  lines  has  not  sufficient  color  of  title  to  main- 
tain such  defense. — Lebanon  Co.  v.  Rogers,  8  Colo. 
34.  Possession  under  title  bond  gives  claim  and 
color  after  payment  of  purchase  money. — Woods  v. 
Montevallo  Co.  84  Ala.  560;  5  Am.  St.  R.  393. 

In  instances  the  title  may  ripen  without  being 
initiate  on  any  paper. — Minnesota  Co.  v.  Brasier,  45 
Pac.  632;  Risch  v.  Wiseman,  59  Pac.  1111. 

As  to  actions  for  trespass  for  coal  or  ore  taken 
but  the  fact  not  ascertained  by  plaintiff  within  the 
statutory  period — see  Lewey  v.  Frick  Co.  31  Atl.  261; 
17  M.  R.  — ;  Williams  v.  Pomeroy  Co.  6  M.  R.  195. 

And  as  to  that  class  of  cases  (as  in  secret  under- 
mining) where  a  long  interval  may  elapse  before 
the  resulting  injury,  see  Hall  v.  Duke  of  Norfolk,  L. 
R.  (1900),  2  Ch.  493;  Sterrett  v.  Northport  Co.  70  Pac. 
266. 


BUREAU  OF  MINES— COMMISSIONER— 
INSPECTOR. 


By  Art.  16,  Sec.  1,  of  the  Constitution  of  Colo- 
rado, the  office  of  Commissioner  of  Mines  was  author- 
ized. The  appointment  to  the  office  was  provided  for 
by  Act  of  1877,  and  in  1889  the  independent  office 
of  inspector  of  metalliferous  mines  was  established. 
In  1895  a  Bureau  of  Mines  was  created  and  the  Act 


ASSAYS.  341 

of  1889   was   repealed;    and   in   1899   the   Bureau   of 
Mines  Act  was  amended. 

The  Act  now  provides  for  the  appointment  of  a 
Commissioner,  Inspectors  and  Deputies;  the  super- 
vision and  safe  guarding  of  mines  and  the  protection 
of  miners:  makes  it  the  duty  of  operators  to  report 
accidents  and  of  the  Commissioner  to  investigate  the 
cause,  and  provides  regulations  for  the  government 
of  mining,  such  as  the  storage  of  explosives,  use  of 
wooden  tamping  bars,  signals,  ladders,  ventilation, 
covering  of  shafts,  etc.;  and  provides  penalties  for 
failure  to  comply  with  its  terms. — Acts  1899,  p.  277. 


ASSAYS. 


Gold,  silver  and  platinum  are  assayed  for  the 
number  of  ounces  per  ton  of  ore;  lead,  copper,  zinc 
and  the  base  metals  generally  for  the  per  cent,  of  the 
mineral  in  the  ore. 

An  assay  is  the  test  of  the  value  of  a  specimen 
or  quantity  of  ore  by  the  extraction  of  the  amount 
of  silver,  gold  or  other  metal,  contained  in  a  minute 
but  exact  fraction,  which  amount  is  supposed  to  be 
proportionate  to  the  whole  amount  found  in  the 
quantity  from  which  the  fraction  was  obtained. 
Supposing  the  assay  to  be  correct,  its  importance  in 
determining  the  quantity  of  metal  in  the  ore  of  the 
mine,  or  the  value  of  the  mine  as  deduced  from  its 
ore  product,  depends  on  the  size  of  the  lot  from 
which  it  was  obtained,  and  the  manner  in  which 
such  lot  was  selected.  What  are  called  specimen 
assays  are  of  no  value  whatever,  further  than  to 
show  the  contents  of  the  identical  specimen  from 
which  made,  but  are  often  used  to  deceive  persons 
ignorant  in  such  matters. 

While  the  assay  shows  only  the  contents  of  that 
portion  of  ore  that  has  been  assayed,  its  importance 
lies  in  its  acceptance  as  indicating  the  contents  of 


342  ASSAYS. 

other  ore,  of  which  the  portion  assayed  was  a 
"sample." 

Between  buyer  and  seller  ore  is  usually  sampled 
by  the  former,  under  supervision  of  the  latter,  if 
he  choose  to  be  present.  The  sample  taken  (pulver- 
ized) is  divided  into  portions — one  for  the  buyer,  one 
for  the  seller,  and  one  to  be  kept  for  reference  in 
case  of  difference  between  the  other  two.  After 
division,  each  portion  is  in  itself  a  sample.  Both 
buyer  and  seller  have  a  control  assay  (assay  in  du- 
plicate) made  of  their  respective  samples.  The  sale 
is  customarily  made  on  the  assay  of  the  buyer,  and 
the  sample  of  the  seller  is  intended  for  a  check  on 
the  assay  of  the  buyer. 

The  results  of  carefully  made  assays  should  not 
differ  more  than  two  oz.  silver  or  two  tenths  oz.  gold 
except  where  the  ore  contains  much  free  gold,  native 
silver  or  silver  glance,  the  particles  of  which  cannot 
be  reduced  to  exact  evenness,  and  make  assays  of 
these  classes  of  ore  treacherous.  In  case  of  dis- 
agreement, the  third  portion  of  the  original  sample, 
called  the  umpire,  is  tested  by  a  third  party  for  a 
control,  and  this  assay  is  final  unless  there  be  such 
unusual  and  excessive  variation  as  to  suggest  the 
necessity  of  resampling. 

The  intent  of  an  assay  is  to  show  the  true  value 
of  the  ore,  and  if  it  is  so  taken  as  not  to  show  such 
value,  proof  of  assays  otherwise  taken  may  be  given 
in  evidence. — Pliipps  v.  Hully,  15  M.  R.  350.  Dis- 
tinction in  results  of  wet  and  fire  assays. — In  re 
Puget  Co.  96  Fed.  90. 

Sales  based  on  assay  are  not  bound  by  the  assay 
in  case  of  gross  error. — Cox  v.  Prentice,  S  M.  &  S. 
344-  As  to  the  custom  of  assay ers,  and  of  which  party, 
if  of  either,  he  is  the  agent,  see  this  case  and  Trotter 
v.  Heckscher,  40  N.  J.  Eq.  612;  42  Id.  251.  As  to  de- 
ductions for  moisture  see  this  litigation  continued 
in  LeMgh  Co.  v.  Trotter,  42  N.  J.  Eq.  661.  Sufficient 
proof  by  assay  that  samples  were  salted  with  pow- 
dered silver. — Mudsill  Co.  v.  Watrous,  61  Fed.  163. 
By  assay  with  litharge,  a  trace  of  silver  may  be 


SCHOOL  OP  MINES.  343 

shown  in  any  kind  of  rock. — Ormond  v.  Granite  Mt. 
Co.  28  Pac.  289.  An  assay  of  two  lots  is  no  proof 
of  the  value  of  a  series  of  shipments. — Pittsburg 
Co.  v.  GlicTc,  42  Pac.  188. 

Mill  samples  control  car  samples. — Vietti  v.  Nes- 
Utt,  41  Pac.  151;  Fox  v.  Hale  Co.  41  Pac.  308.  The 
"Assay  value"  of  gold  means  its  universal  standard 
value  and  not  the  value  of  local  gold  bullion. — Id. 
But  a  contract  to  pay  95  per  cent,  of  the  silver  con- 
tents .of  the  "product  of  said  ore"  does  not  mean  95 
per  cent,  of  the  assay  value  of  the  raw  ore. — Silver 
Co.  v.  N.  C.  8m.  Co.  29  8.  E.  940. 

An  assay  is  material  proof  on  an  issue  as  to 
whether  certain  rock  is  mineral  bearing. — Healey 
v.  Rupp,  63  Pac.  319. 


SCHOOL  OF  MINES. 


The  General  Assembly  may  provide  that  the  Sci- 
ence of  Mining  and  Metallurgy  be  taught  in  one  or 
more  of  the  institutions  of  learning  under  the  pat- 
ronage of  the  State. — Colo.  Const.  Art.  16,  Sec.  4- 

Under  the  above  provision  the  "School  of  Mines" 
at  Golden  is  specially  incorporated  under  M.  A.  8. 
Chap.  110.  and  is  supported  by  the  State. 

Its  declared  object  is  to  furnish  "such  instruc- 
tion as  is  provided  for  in  like  technical  schools  of  a 
high  grade,"  and  it  is  authorized  to  confer  degrees. 
— M.  A.  8.  §  4074. 

The  course  includes  four  years  of  two  terms 
each.  These  are  divided,  after  the  first  year,  into 
Mining  and  Metallurgical  and  Electrical  Engineer- 
ing. 

Similar  State  schools  are  established  at  Rolla, 
Missouri;  Houghton,  Michigan;  Rapid  City,  South 
Dakota;  and  Butte,  Montana.  The  University  of 
California  also  has  a  department  styled  a  School  of 
Mines. 


344  LAND  OFFICE  RULES. 


*LAND  OFFICE  REGULATIONS. 


Re-Issued  by  the  General  Land  Office,  July  26, 
1901. 


**NATURE   AND  EXTENT    OP    MINING   CLAIMS. 

1.  Mining  claims   are  of  two  distinct  classes  :     Lode 
claims  and  placers. 

LODE    CLAIMS. 

2.  The   status  of  lode   claims  located  or  patented  previous 
to  the  10th  day  of  May,  1872,  is  not  changed  with  regard 
to  their  extent  along  the  lode  or  width  of  surface  ;    but  the 
claim   is   enlarged   by  sections   2322  and  2328,   by  investing 
the  locator,  his  heirs  or  assigns,  with   the  right  to  follow, 
upon  the  conditions  stated  therein,  all  veins,  lodes,  or  ledges, 
the   top   or   apex   of   which  lies   inside   of  the   surface   lines 
of    his    claim. 

3.  It  is  to  be  distinctly  understood,  however,  that  the  law 
limits  the  possessory  right  to  veins,  lodes,  or  ledges,    other 
than    the    one    named   in   the   original   location,    to   such    as 
were  not  adversely  claimed  on  May  10,  1812,  and  that  where 
such  other  vein  or  ledge  was  so  adversely  claimed  at  that 
date  the  right  of  the  party  so  adversely  claiming  is  in  no 
way  impaired  by  the  provisions  of  the  Revised  Statutes. 

4.  From  and  after  the  10th  May,   1872,  any  person  who  is 
a  citizen  of  the  United  States,  or  who  has  declared  his  in-  • 
tention  to  become  a  citizen,  may  locate,  record,  and  hold  a 
mining  claim  of  fifteen  hundred  linear  feet  along  the  course 
of  any  mineral  vein  or  lode  subject  to  location  ;   or  an  as- 
sociation of  persons,  severally  qualified  as  above,  may  make 
joint  location  of  such  claim  of  fifteen  hundred  feet,  but  in 
no  event   can   a   location   of  a  vein  or  lode  made  after  the 
10th   day   of  May,    1872,   exceed   fifteen   hundred  feet   along 
the   course   thereof,   whatever    may    be    the   number    of   per- 
sons composing  the  association. 

*NOTE. — Prior  to  1895  the  surveyors  general  had  each  a 
separate  set  of  rules,  based  upon  the  Land  Office  Rules,  reg- 
ulating work  in  their  departments.  In  that  year  the  Com- 
missioner issued  a  Manual  of  Instructions  which  superseded 
all  local  circulars.  By  the  last  revision  of  the  Regulations, 
the  Manual  of  Instructions  is  made  a  part  of  the  Regula- 
tions. 

**In  the  circular  these  instructions  are  preceded  by  a 
copy  of  the  act  of  Congress. 


LAND  OFFICE  RULES.  345 

5.  Width — Surface   Ground. — With    regard   to    the   extent 
of  surface  ground  adjoining  a  vein  or  lode,  and  claimed  for 
the  convenient  working  thereof,  the  Revised  Statutes  provide 
that  the  lateral  extent  of  locations   of  veins  or  lodes  made 
after  May  10,   1872,  shall   in  no  case  exceed  three  hundred 
feet  on  each  side  o'f  the  middle  of  the  vein  at  the  surface, 
and   that   no   such   surface   rights    shall    be   limited   by   any 
mining    regulations    to    less    than    twenty-five    feet    on    each 
side  of  the  middle  of  the  vein  at  the  surface,  except  where 
adverse     rights     existing     on     the     10th     May,     1872,     may 
render   such    limitation   necessary ;    the    end     lines    of    such 
claims  to  be  in  all  cases  parallel  to  each  other.     Said  lateral 
measurements  can  not  extend  beyond  three  hundred  feet  on 
either  side  of  the  middle  of  the  vein  at  the  surface,  or  such 
distance   as   is    allowed    by   local    laws.      For   example :    400 
feet  can  not  be  taken  on  one  side  and  200  feet  on  the  other. 
If,  however,  300  feet  on  each  side  are  allowed,  and  by  rea- 
son of  prior  claims  but  100  feet  can  be  taken  on  one  side, 
the  locator  will  not  be  restricted  to  less  th,an  300  feet  on 
the  other   side ;   and  when   the   locator   does   not   determine 
by  exploration  where  the  middle  of  the  vein  at  the  surface 
is,  his  discovery  shaft  must  be  assumed  to  mark  such  point. 

6.  Size  of  Claim. — By  the  foregoing  it  will  be  perceived 
that  no  lode   claim  located   after  the   10th   May,    1872,   can 
exceed    a   parallelogram    fifteen    hundred   feet    in    length    by 
six   hundred  feet   in  width,   but  whether  surface  ground   of 
that  width  can  be  taken  depends  upon  the  local  -regulations 
or  State  or  Territorial  laws  in  force  in  the  several  mining 
districts ;   and    that   no   such    local    regulations   or    State   or 
Territorial    laws   shall     limit    a  vein   or    lode    claim   to   less 
than  fifteen  hundred  feet  along  the  course  thereof,  whether 
the  location   is  made  by  one  or  more  persons,  nor  can  sur- 
face rights  be  limited  to  less  than  fifty  feet  in  width  unless 
adverse    claims    existing    on    the    10th    day    of    May,    1872, 
render  such   lateral   limitation   necessary. 

7.  Location    Certificate. — Locators    can    not    exercise    too 
much  care  in  defining  their  locations  at  the  outset,  inasmuch 
as   the    law    requires    that    all    records    of   mining    locations 
made  subsequent  to  May    10,   1872,   shall   contain  the  name 
or  names  of  the  locators,  the  date  of  the  location,  and  such 
a  description   of  the   claim   or  claims   located,   by    reference 
to   some    natural    object    or    permanent    monument,    as    will 
identify   the  claim. 

8.  No  lode  claim  shall  "be  located  until  after  the  discovery 
of  a  vein  or  lode  within  the  limits  of  the  claim,  the  object 
of  which  provision  is  evidently  to  prevent  the  appropriation 
of    presumed    mineral    ground   for    speculative    purposes,    to 
the  exclusion  of  bona  fide  prospectors,  before  sufficient  work 
has   been  done  to   determine  whether   a  vein   or  lode  really 
exists. 

9.  Discovery — Ties — Description. — The      claimant      should, 
therefore,   prior  to   locating  his   claim,   unless   the  vein   can 
be  traced   upon  the   surface,   sink   a   shaft   or   run   a   tunnel 


346  LAND  OFFICE  RULES. 

or  drift  to  a  sufficient  depth  therein  to  discover  and  de- 
velop a  mineral-bearing  vein,  lode,  or  crevice ;  should  de- 
termine, if  possible,  the  general  course  of  such  vein  in  either 
direction  from  the  point  of  discovery,  by  which  direction 
he  will  be  governed  in  marking  the  boundaries  of  his  claim 
on  the  surface.  His  location  notice  should  give  the  course 
and  distance  as  nearly  as  practicable  from  the  discovery 
shaft  on  the  claim  to  some  permanent,  well-known  points 
or  objects,  such,  for  instance,  as  stone  monuments,  blazed 
trees,  the  confluence  of  streams,  point  of  intersection  of 
well-known  gulches,  ravines,  or  roads,  prominent  buttes, 
hills,  etc.,  which  may  be  in  the  immediate  vicinity,  and 
which  will  serve  to  perpetuate  and  fix  the  locus  of  the 
claim  and  render  it  susceptible  of  identification  from  the 
description  thereof  given  in  the  record  of  locations  in  the 
district,  and  should  be  duly  recorded. 

10.  Adjoining   Claims — Staking — Location  Notice, — In  addi- 
tion to   the   foregoing   data,    the   claimant  should   state   the 
names  of  adjoining  claims,  or,   if  none  adjoin,   the  relative 
positions  of  the  nearest  claims  ;  should  drive  a  post  or  erect 
a  monument  of  stones  at  each  corner  of  his  surface  ground, 
and    at    the    point    of    discovery    or    discovery    shaft    should 
fix  a  post,  stake,  or  board,  upon  which  should  be  designated 
the  name  of  the  lode,   the  name  or  names  of  the  locators, 
the   number   of   feet    claimed,    and   in   which   direction  from 
the  point  of  discovery  ;  it  being  essential  that  the  location 
notice  filed  for  record,  in  addition  to  the  foregoing  descrip- 
tion, should  state  whether  the  entire  claim  of  fifteen   hun- 
dred  feet   is   taken   on   one  side   of  the  point   of   discovery, 
or  whether  it  is  partly  upon  one  and  partly  upon  the  other 
side    therof,    and    in    the    latter    case,    how    many    feet    are 
claimed  upon  each  side  of  such  discovery  point. 

11.  The  location  notice  must  be  filed  for  record  in   all  re- 
spects   as    required    by    the    State    or    Territorial    laws    and 
local  rules  and  regulations,  if  there  be  any. 

12.  Annual  Labor. — In  order  to  hold  the  possessory  title 
to  a  mining  claim   located  prior   to  May  10,   1872,   the  law 
requires  that  ten  dollars  shall  be  expended  annually  in  labor 
or  improvements  for  each  one  hundred  feet  in  length  along 
the  vein  or  lode.      In  order  to  hold  the  possessory  right  to 
a  location  made  since  May  10,  1872,  not  less  than  one  hun- 
dred dollars'  worth  of  labor  must  be  performed  or  improve- 
ments made  thereon  annually.      Under  the  provisions  of  the 
act   of   Congress   approved   January   22,    1880,   the   first   an- 
nual expenditure  becomes  due  and  must  be  performed  during 
the  calendar  year  succeeding  that  in  which  the  location  was 
made.      Where  a  number  of  claims  are  held  in  common,  the 
aggregate  expenditure  that  would   be  necessary   to  hold   all 
the  claims,  may  be  made  upon  any  one  claim. 

13.  Failure  to  make   the  expenditure  or  perform  the  labor 
required  upon  a  location  made  before  or  since  May  10,  1872, 
will    subject   a   claim   to   relocation,    unless   the   original    lo- 


LAND  OFFICE  RULES.  347 

cator,   his   heirs,   assigns,    or   legal   representatives    have   re- 
sumed work  after  such  failure  and  before  relocation. 

14.  Annual  expenditure  is  not  required  subsequent  to  entry, 
the   date   of   issuing   the   patent    certificate   being   the    date 
contemplated  by  statute. 

15.  Forfeiture    of   Coowners — Interest. — Upon     the    failure 
of  any  one  of  several  coowners  to  contribute  his  proportion 
of  the  required   expenditures,   the   coowners,   who   have   per- 
formed  the    labor   or   made    the   improvements    as    required, 
may,    at   the   expiration    of   the   year,    give   such    delinquent 
coowner  personal  notice  in  writing,  or  notice  by  publication 
in  the  newspaper   published  nearest  the  claim   for   at   least 
once  a  week   for   ninety   days  ;    and   if   upon   the  expiration 
of  ninety  days  after  such  notice  in  writing,  or  upon  the  ex- 
piration   of    one   hundred    and    eighty    days    after    the    first 
newspaper    publication    of    notice,    the    delinquent    coowner 
shall  have  failed  to  contribute  his  proportion  to  meet  such 
expenditures    or    improvements,    his    interest    in    the    claim 
by  law  passes  to  his  coowners  who  have  made  the  expend- 
itures   or    improvements    as    aforesaid.       Where   a    claimant 
alleges  ownership  of  a  forfeited  interest  under  the  foregoing 
provision,   the   sworn  statement  of   the  publisher  as   to  the 
facts  of  publication,  giving  dates  and  a  printed  copy  of  the 
notice  published,  should  be  furnished,  and  the  claimant  must 
swear  that  the  delinquent  coowner  failed   to  contribute  his 
proper  proportion  within  the  period  fixed  by  the  statute. 

TUNNELS. 

16.  The  effect  of  section  2323,  Revised  Statutes,  is  to  give 
the   proprietors   of  a  mining   tunnel   run  in   good   faith   the 
possessory  right  to  fifteen   hundred  feet  of  any   blind  lodes 
cut,   discovered,   or   intersected  by  such   tunnel,   which  were 
not  previously   known  to  exist,   within   three   thousand   feet 
from   the  face   or   point   of   commencement   of  such   tunnel, 
and   to   prohibit   other   parties,   after  the   commencement   of 
the  tunnel,   from   prospecting  for   and   making   locations    of 
lodes  on  the  line  thereof  and  within  said  distance  of  three 
thousand  feet,    unless   such   lodes    appear   upon   the   surface 
or   were  previously  known   to   exist.     The   term    "face,"     as 
used  in  said  section,  is  construed  and  held  to  mean  the  first 
working  face  formed  in  the  tunnel,  and  to  signify  the  point 
at  which   the   tunnel   actually   enters    cover ;   it   being   from 
this  point  that  the  three  thousand  feet  are  to  be  counted 
upon  which  prospecting  is  prohibited  as  aforesaid. 

17.  Tunnel  Notice— Staking.— To  avail  themselves  of  the 
benefits  of  this  provision  of  law,  the  proprietors  of  a  min- 
ing tunnel   will   be   required,    at  the   time   they   enter  coyer 
as  aforesaid,  to  give  proper  notice  of  their  tunnel   location 
by  erecting  a  substantial   post,  board,   or  monument  at  the 
face  or  point  of  commencement  thereof,  upon  which  should 
be  posted  a  good  and  sufficient  notice,  giving  the  names  of 
the  parties  or  company  claiming  the  tunnel  right ;  the  actual 
or  proposed  course  or   direction   of  the  tunnel ;   the   height 


348  LAND  OFFICE  RULES. 

and  width  thereof,  and  the  course  and  distance  from  such 
face  or  point  of  commencement  to  some  permanent  well- 
known  objects  in  the  vicinity  by  which  to  fix  and  determine 
the  locus  in  manner  heretofore  set  forth  applicable  to  lo- 
cations of  veins  or  lodes,  and  at  the  time  of  posting  such 
notice  they  shall,  in  order  that  miners  or  prospectors  may 
be  enabled  to  determine  whether  or  not  they  are  within 
the  lines  of  the  tunnel,  establish  the  boundary  lines  thereof, 
by  stakes  or  monuments  placed  along  such  lines  at  proper 
intervals,  to  the  terminus  of  the  three  thousand  feet  from 
the  face  or  point  of  commencement  of  the  tunnel,  and  the 
lines  so  marked  will  define  and  govern  as  to  the  specific 
boundaries  within  which  prospecting  for  lodes  not  previ- 
ously known  to  exist  is  prohibited  while  work  on  the  tun- 
nel is  being  prosecuted  with  reasonable  diligence. 

18,  Record  of  Tunnel, — At  the  time  of  posting  notice  and 
marking  out  the  lines  of  the  tunnel  as  aforesaid,  a  full  and 
correct  copy  of  such  notice  of  location  defining  the  tunnel 
claim    must    be   filed   for    record   with    the   mining   recorder 
of  the  district,  to  which  notice  must  be  attached  the  sworn 
statement  or  declaration   of  the  owners,   claimants,   or  pro- 
jectors of  such  tunnel,  setting  forth  the  facts  in  the  case  ; 
stating  the  amount  expended  by  themselves  and  their  pred- 
ecessors in  interest  in  prosecuting  work  thereon  ;  the  extent 
of  the  work  performed,  and  that  it  is  boner  fide  their  inten- 
tion  to   prosecute    work    on   the   tunnel   so   located   and   de- 
scribed with  reasonable  diligence  for  the  development   of  a 
vein  or  lode,  or  for  the  discovery  of  mines,  or  both,  as  the 
case  may  be.      This  notice  of  location  must  be  duly  recorded, 
and,    with    the   sworn   statement   attached,   kept   on   the   re- 
corder's files  for  future  reference. 

PLACEE    CLAIMS.* 

19.  But  one   discovery  of  mineral  is  required  to   support  a 
placer  location,  whether  it  be   of  twenty  acres  by   an  indi- 
vidual,  or   of   one   hundred   and   sixty   acres    or    less   by   an 
association  of  persons. 

20.  Building  Stone — School  Lands, — The  act  of  August   4, 
1892,    extends   the   mineral-land  laws   so  as    to   bring   lands 
chiefly  valuable  for  building  stone  within  the  provisions  of 
said  law  by  authorizing  a  placer  entry  of  such  lands.     Reg- 
isters and  receivers  should  make  a  reference  to  said  act  on 
the  entry  papers  in  the  case  of  all  placer  entries  made  for 
lands  containing  stone  chiefly  valuable  for  building  purposes. 
Lands  reserved  for  the  benefit  of  public  schools  or  donated 
to  any  State  are  not  subject  to  entry  under  said  act. 

21,  Petroleum— Oils.— The   act     of     February     11,     1897, 
provides  for  the  location  and   entry  of  public  lands  chiefly 
valuable   for   petroleum    or   other   mineral    oils,    and   entries 
of  that  nature  made   prior  to  the  passage  of  said  act   are 
to  be  considered  as  though  made  thereunder. 

*See,  also,  Regulations  58-60. 


LAND  OFFICE  RULES.  349 

22.  Ten-Acre  Lots— No  Survey,— By  section   2330  author- 
ity  is   given   for    the   subdivision   of   forty-acre   legal   subdi- 
visions into  ten-acre  lots,  which  is  intended  for  the  greater 
convenience  of  miners  in  segregating  their  claims  both  from 
one    another   and   from    intervening   agricultural    lands.      It 
is  held,  therefore,  that   under  a  proper  construction  of  the 
law   these   ten-acre  lots   in   mining   districts   should   be   con- 
sidered   and    dealt    with,    to    all    intents    and    purposes,    as 
legal    subdivisions,    and   that   an   applicant   having   a   claim 
which  conforms  to  one  or  more  of  these  ten-acre  lots,   con- 
tiguous in  case  of  two  or  more  lots,  may  make  entry  thereof, 
after    the    usual    proceedings,    without    further    survey    or 
plat. 

23.  Idem — Mode   of  Entry. — In   cases   of  this   kind,   how- 
ever, the  notice  given  of  the  application  must  be  very  spe- 
cific  and   accurate   in    description,     and     as     the    forty-acre 
tracts   may   be  subdivided   into   ten-acre   lots,    either   in   the 
form  of  squares  of  ten  by  ten  chains,  or,  if  parallelograms, 
five  by  twenty  chains,  so  long  as  the  lines  are  parallel  and 
at  right  angles  with  the  lines  of  the  public  surveys,  it  will 
be  necessary  that  the  notice  and  application  state  specifically 
what  ten-acre  lots  are  sought  to  be  patented  in  addition  to 
the  other  data  required  in  the  notice. 

24.  Description   by    Legal   Subdivisions. — Where     the     ten- 
acre  subdivision  is  in  the  form   of  a  square  it   may  be  de- 
scribed, for  instance,  as  the  "SE.    %   of  the  SW.    *4   of  the 
NW.  %,"  or,  if  in  the  form  of  a  parallelogram  as  aforesaid, 
it  may  be  described  as  the  "W.   %   of  the  W.   y2   of  the  SW. 
i/4   of  the  NW.    %     (or  the  N.   y2    of  the  S.   %   of  the  NE. 
14  of  the  SE.  %)   of  section  ,  township  ,  range 

,"  as  the  case  may  be ;  but,  in  addition  to  this  de- 
scription of  the  land,  the  notice  must  give  all  the  other 
data  that  is  required  in  mineral  application,  by  which 
parties  may  be  put  on  inquiry  as  to  the  premises  sought 
to  be  patented.  The  proofs  submitted  with  applications 
for  claims  of  this  kind  must  show  clearly  the  character  and 
the  extent  of  the  improvements  upon  the  premises. 

25.  The  proof  of  improvements  must  show  their  value  to  be 
not  less  than  five  hundred  dollars  and  that  they  were  made 
by    the   applicant   for   patent   or    his   grantors.      This   proof 
should  consist  of  the  affidavit  of  two  or  more  disinterested 
witnesses.      The  annual  expenditure  to  the  amount  of  $100, 
required   by   section   2324,    Revised   Statutes,   must  be   made 
upon  placer  claims  as  well  as  lode  claims. 

26.  Lode  in  Placer. — Applicants   for  patent  to  a  placer 
claim,  who  are  also  in  possession  of  a  known  vein  or  lode 
included   therein,   must  state   in   their  application   that   the 
placer  includes  such  vein  or  lode.      The  published  and  posted 
notices  must  also  include  such  statement.      If  veins  or  lodes 
lying  within   a  placer  location  are  owned  by  other  parties, 
the  fact  should   be   distinctly   stated  in  the   application  for 
patent,  and  in  all  the  notices.     But  in  all  cases,  whether  the 
lode  is  claimed  or  excluded,  it  must  be  surveyed  and  marked 


350  LAND  OFFICE  RULES. 

upon  the  plat,  the  field  notes  and  plat  giving  the  area  of 
the  lode  claim  or  claims  and  the  area  of  the  placer  separately. 
An  application  which  omits  to  claim  such  known  vein  or 
lode  must  be  construed  as  a  conclusive  declaration  that  the 
applicant  1ms  no  right  of  possession  to  the  vein  or  lode. 
Where  there  is  no  known  lode  or  vein,  the  fact  must  appear 
by  the  affidavit  of  two  or  more  witnesses. 

27.  Size  of  Claim,— By  section  2330  it  is  declared  that 
no  location  of  a  placer  claim,  made  after  July  9,  1870,  shall 
exceed  one  hundred  and  sixty  acres  for  any  one  person  or 
association  of  persons,  which  location  shall   conform  to  the 
United  States  surveys. 

28.  Conform    to    Public    Survey.— Section    2331    provides 
that   all   placer-mining   claims   located   after   May   10,   1872, 
shall    conform    as    nearly    as    practicable    with    the    United 
States   system    of   public-land   surveys    and   the    rectangular 
subdivisions  of  such  surveys,   and   such   locations  shall   not 
include  more  than  twenty  acres  for  each  individual   claim- 
ant. 

29.  Location  by  an  Association, — The  foregoing  provisions 
of  law   are   construed  to   mean  that   after   the  9th   day   of 
July,   1870,  no  location  of   a   placer   claim   can   be  made   to 
exceed   one  hundred  and  sixty   acres,   whatever  may   be  the 
number  of  locators  associated  together,  or  whatever  the  local 
regulations  of   the  district   may  allow  ;   and   that  from  and 
after  May  10,  1872,  no  location  can  exceed  twenty  acres  for 
each  individual  participating  therein  ;  that  is,  a  location  by 
two  persons  can  not   exceed  forty  acres,   and  one  by   three 
persons  can  not  exceed  sixty  acres. 

30.  How  Located. — The  regulations    hereinbefore    given 
as  to  the  manner  of  marking  locations  on  the  ground,  and 
placing  the  same  on  record,  must  be  observed  in  the  case  of 
placer  locations  so  far  as  the  same  are  applicable,  the  law 
requiring,    however,    that   all    placer    mining   claims    located 
after  May  10,  1872,  shall  conform  as  near  as  practicable  with 
the   United   States   system   of   public   land   surveys   and    the 
rectangular  subdivisions  of  such  surveys,  whether  the  loca- 
tions are  upon  surveyed  or  unsurveyed  lauds. 

REGULATIONS    UNDER    SALINE    ACT. 

31.  Only  One  Location  Allowed  to  Same  Person, — Under  the 
act  approved  January  31,   1901,   extending  the  mining  laws 
to  saline  lands,  the  provisions  of  the  law  relating  to  placer- 
mining  claims  are  extended  to  all  States  and  Territories  and 
the  district  of  Alaska,  so  as  to  permit  the  location  and  pur- 
chase  thereunder  of  all   unoccupied  public   lands  containing 
salt   springs,   or   deposits   of   salt   in   any   form,   and   chiefly 
valuable  therefor,  with  the  proviso,   "That  the  same  person 
shall  not  locate  or  enter  more  than  one  claim  hereunder." 

32.  Rights    obtained    by    location    under    the    placer-mining 
laws  are  assignable,  and  the  assignee   may  make  the  entry 
in  his   own   name ;  so,   under  this   act  a   person  holding  as 
assignee  may  make  entry  in  his  own  name :     Provided,  He 


LAND  OFFICE  RULES.  351 

has  not  held  under  this  act,  at  any  time,  either  as  locator 
or  entryman,  any  other  lands ;  his  right  is  exhausted  by 
having  held  under  this  act  any  particular  tract,  either  as 
locator  or  entryman,  either  as  an  individual  or  as  a  mem- 
ber of  an  association.  It  follows,  therefore,  that  no  ap- 
plication for  patent  or  entry,  made  under  this  act,  shall 
embrace  more  than  one  single  location. 

33.  Affidavit  to  Location  Certificate. — In    order    that    the 
conditions  imposed  by  the  proviso,  as  set  forth  in  the  above 
paragraph,  may    duly    appear,    the  notice  of    location    pre- 
sented for  record  and  the  application  for  patent  must  each 
contain  a  specific  statement  under  oath  by  each  person  whose 
name  appears  therein  that  he  never  has,  either  as  an  indi- 
vidual or  as  a  member  of  an  association,  located  or  entered 
any  other  lands  under  the  provisions  of  this  act.      Assign- 
ments made   by  persons  who  are  not  severally   qualified  as 
herein  stated  will  not  be  recognized. 

PROCEDURE    TO    OBTAIN    PATENT    TO    MINERAL 
LANDS. 

LODE   CLAIMS. 

34.  Official  Survey. — The  claimant    is    required,    in    the 
first  place,  to  have  a  correct  survey  of  his  claim  made  under 
authority  of  the  surveyor-general  of  the  State  or  Territory 
in  which  the  claim  lies,  such  survey  to  show  with  accuracy 
the  exterior  surface  boundaries  of  the  claim,  which  bound- 
aries are  required  to  be  distinctly  marked  by  monuments  on 
the  ground.      Four  plats  and  one  copy  of  the  original  field 
notes  in  each  case  will  be  prepared  by  the  surveyor-general ; 
one  plat  and  the  original  field  notes  to  be  retained  in  the 
office   of   the   surveyor-general,   one   copy   of  the   plat   to   be 
given  the  claimant  for  posting  upon  the  claim,  one  plat  and 
a  copy  of  the  field  notes  to  be  given  the  claimant  for  filing 
with  the  proper  register,  to  be  finally  transmitted  by   that 
officer,  with  other  papers  in  the  case,  to  this  office,  and  one 
plat  to  be   sent   by   the   surveyor-general   to  the  register   of 
the  proper  land  district,  to  be  retained  on  his  files  for  future 
reference.      As  there  is  no  resident  surveyor-general  for  the 
State   of  Arkansas,   applications  for   the  survey  of  mineral 
claims  in  said  State  should  be  made  to  the  Commissioner  of 
this  office,  who,  under  the  law,  is  ex  ojftcio  the  U.  S.  surveyor- 
general. 

35.  Idem — None  Before  Record. — The  survey  and  plat  of 
mineral  claims  required  to  be  filed  in  the  proper  land  office 
with  application  for  patent  must  be  made  subsequent  to  the 
recording  of  the  location   of  the  claim    (if  the  laws  of  the 
State  or  Territory  or  the  regulations  of  the  mining  district 
require   the   notice   of   location   to   be   recorded),    and   when 
the  original   location  is  made  by  survey  of  a  United  States 
deputy  surveyor  such  location  survey  can  not  be  substituted 
for  that  required  by  the  statute,  as  above  indicated. 

36.  Numbering  Surveys — Ties  to   Government  Corners. — The 
surveyors-general    should     designate     all     surveyed     mineral 


352  LAND  OFFICE  RULES. 

« 

claims  by  a  progressive  series  of  numbers,  beginning  with 
survey  No.  37,  irrespective  as  to  whether  they  are  situated 
on  surveyed  or  unsurveyed  lands,  the  claim  to  be  so  desig- 
nated at  date  of  issuing  the  order  therefor,  in  addition  to 
the  local  designation  of  the  claim  ;  it  being  required  in  all 
cases  that  the  plat  and  field  notes  of  the  survey  of  a  claim 
must,  in  addition  to  the  reference  to  permanent  objects 
in  the  neighborhood,  describe  the  locus  of  the  claim  with 
reference  to  the  lines  of  public  surveys  by  a  line  connect- 
ing a  corner  of  the  claim  with  the  nearest  public  corner  of 
the  United  States  surveys,  unless  such  claim  be  on  unsur- 
veyed lands  at  a  distance  of  more  than  two  miles  from  such 
public  corner,  in  which  latter  case  it  should  be  connected 
with  a  United  States  mineral  monument.  Such  connecting 
line  must  not  be  more  than  tivo  miles  in  length,  and  should 
be  measured  on  the  ground  direct  betwreen  the  points,  or 
calculated  from  actually  surveyed  traverse  lines  if  the  na- 
ture of  the  country  should  not  permit  direct  measurement. 
If  a  regularly  established  survey  corner  is  within  two  miles 
of  a  claim  situated  on  unsurveyed  lands,  the  connection 
should  be  made  with  such  corner  in  preference  to  a  connec- 
tion with  a  United  States  mineral  monument.  The  con- 
necting line  or  traverse  line  must  be  surveyed  by  the  deputy 
mineral  surveyor  at  the  time  of  his  making  the  particular 
survey,  and  be  made  a  part  thereof. 

37,  Diagram  of  Claim  on  Surveyed  Land. — Upon    the    ap- 
proval of  the  survey  of  a  mining  claim  made  upon  surveyed 
lands  the  surveyor-general  will  prepare  and  transmit  to  the 
local  land  office  and  to  this  office  a  diagram  made  upon  the 
usual  drawing  paper  township   blank,   showing  the  portions 
of    legal    40-acre    subdivisions   made     fractional     by     reason 
of   the   mineral    survey,    designating   each    of   such    portions 
by    the   proper   lot   number,    beginning  with    No.    1    in   each 
section,  and  giving  the  area  of  each  lot. 

38,  The  following  particulars  should  be  observed  in  the  sur- 
vey of  every  mining  claim  : 

(1)  The  exterior  boundaries  of  the  claim,  the  number 
of  feet   claimed  along  the   vein,   and,    as    nearly   as    can   be 
ascertained,   the   direction   of  the   vein,   and  the   number   of 
feet  claimed  on  the  vein  in  each   direction  from   the  point 
of  discovery  or  other  well-defined  place  on  the  claim  should 
be  represented  on  the  plat  of  survey  and  in  the  field  notes. 

(2)  The  intersection  of  the  lines  of  the  survey  with 
the  lines  of  conflicting  prior  surveys  should  be  noted  in  the 
field  notes  and  represented  upon  the  plat. 

(3)  Conflicts  with  unsurveyed  claims,  where  the  ap- 
plicant for  survey  does  not  claim  the  area  in  conflict,  should 
be  shown  by  actual  survey. 

(4)  The  total  area  of  the  claim  embraced  by  the  ex- 
terior boundaries  should  be  stated,  and  also  the  area  in  con- 
flict with  each  intersecting  survey,  substantially  as  follows  ; 


LAND  OFFICE  RULES.  353 

Acres. 

Total  area  of  claim 10.50 

Area  in  conflict  with  Survey  No.  302...  1.56 
Area  in  conflict  with  Survey  No.  948.  .  .  2.33 
Area  in  conflict  with  Mountain  Maid 

lode  mining  claim,  unsurveyed 1.48 

It  does  not  follow  that  because  mining  surveys  are  re- 
quired to  exhibit  all  conflicts  with  prior  surveys  the  areas 
of  conflict  are  to  be  excluded.  The  field  notes  and  plat  are 
made  a  part  of  the  application  for  patent,  and  care  should 
be  taken  that  the  description  does  not  inadvertently  exclude 
portions  intended  to  be  retained.  The  application  for  patent 
should  state  the  portions  to  be  excluded  in  express  terms. 

39.  The  claimant  is  then  required  to  post  a  copy  of  the  plat 
of  such  survey   in   a   conspicuous  place  upon  the  claim,   to- 
gether  with  notice   of   his   intention   to  apply  for  a   patent 
therefor,    which    notice   will   give   the    date    of   posting,    the 
name  of  the  claimant,  the   name  of  the  claim,   the  number 
of    the    survey,    the    mining    district    and    county,    and    the 
names  of  adjoining  and  conflicting  claims  as  shown  by  the 
plat  of  survey.     Too  much  care  can  not  be  exercised  in  the 
preparation  of  this  notice,  inasmuch  as  the  data  therein  are 
to  be  repeated  in  the  other  notices  required  by  the  statute, 
and   upon   the   accuracy    and   completeness    of   these   notices 
will  depend,  in  a  great  measure,  the  regularity  and  validity 
of  the  proceedings  for  patent. 

40.  Proof  of  Posting,— After  posting  the  said    plat    and 
notice   upon   the   premises,    the   claimant   will   file   with   the 
proper   register   and   receiver   a   copy   of  such   plat   and   the 
field  notes  of  survey  of  the  claim,  accompanied  by  the  affi- 
davit of  at  least  two  credible  witnesses  that  such  plat  and 
notice  are  posted  conspicuously  upon  the  claim,  giving  the 
date  and  place  of  such  posting ;  a  copy  of  the  notice  so  posted 
to  be  attached  to  and  form  a  part  of  said  affidavit. 

41.  Application     for     Patent, — Accompanying     the     field 
notes  so  filed  must  be  the  sworn  statement  of  the  claimant 
that   he    has   the   possessory   right   to   the   premises    therein 
described,   in  virtue  of  a  compliance  by  himself   (and  by  his 
grantors,  if  he  claims  by  purchase)    with  the  mining  rules, 
regulations,    and    customs    of   the   mining   district,    State,  or 
Territory  in  which  the  claim  lies,  and  with  the  mining  laws 
of  Congress  ;    such  sworn  statement  to  narrate  briefly,   but 
as   clearly   as    possible,   tfce   facts   constituting  such   compli- 
ance, the  origin  of  his  possession,  and  the  basis  of  his  claim 
to  a  patent. 

42.  Abstract  of  Title,— This    sworn    statement    must    be 
supported  by  a  copy  of  the  location  notice,  certified  by  the 
officer  in  charge  of  the  records  where  the  same  is  recorded, 
and    where   the    applicant    for    patent    claims    the    interests 
of   others   associated   with   him    in   making   the   location,    or 
only  as  purchaser,   in  addition   to  the   copy  of  the  location 
notice,   must   be  furnished   a   complete   abstract   of   title   as 

12 


354  LAND  OFFICE  RULES. 

shown  by  the  record  in  the  office  where  the  transfers  are 
by  law  required  to  be  recorded,  certified  to  by  the  officer 
in  charge  of  the  record  under  his  official  seal.  The  officer 
should  also  certify  that  no  conveyances  affecting  the  title 
to  the  claim  in  question  appear  of  record  other  than  those 
set  forth  in  the  abstract,  which  abstract  shall  be  brought 
down  to  the  date  of  the  application  for  patent.  Where  the 
applicant  claims  as  sole  locator  and  does  not  furnish  an 
abstract  of  title,  his  affidavit  should  be  furnished  to  the 
effect  that  he  has  disposed  of  no  interest  in  the  land  lo- 
cated. 

43.  Lost  Records, — In  the   event  of  the   mining  records 
in    any    case    having    been    destroyed    by    fire    or    otherwise 
lost,  affidavit  of  the  fact  should  be  made,  and  secondary  evi- 
dence  of  possessory  title  will   be  received,   which   may  con- 
sist of  the  affidavit  of  the  claimant,  supported  by  those  of 
any    other    parties    cognizant    of    the    facts    relative    to    his 
location,    occupancy,   possession,    improvements,   &c.  ;   and  in 
such  case  of  lost  records,  any  deeds,  certificates  of  location 
or  purchase,  or  other  evidence  which  may  be  in  the  claim- 
ant's possession  and  tend  to  establish  his   claim,  should  be 
filed. 

44.  Two   Applications  for   Same   Land. — Before     receiving 
and  filing  a  mineral  application  for  patent,  local  officers  will 
be  particular  to  see  that  it  includes  no  land  which  is   em- 
braced in  a  prior  or  pending  application  for  patent  or  entry, 
or  for   any   lands   embraced  in  a   railroad  selection,   or   for 
which  publication  is  pending  or  has  been  made  by  any  other 
claimants,   and   if,    in    their    opinion,   after   investigation,   it 
should   appear   that   a   mineral    application   should    not,    for 
these  or   other   reasons,    be   accepted   and   filed,   they   should 
formally  reject  the   same,   giving  the  reasons   therefor,    and 
allow    the    applicant    thirty    days    for    appeal    to    this    office 
under  the  Rules   of  Practice. 

45.  Publication — Publisher's  Agreement. — Upon  the  receipt 
of  these  papers,   if  no  reason  appears  for  rejecting  the  ap- 
plication, the  register  will,  at  the  expense  of  the  claimant 
(who  must  furnish  the  agreement  of  the  publisher  to  hold 
applicant  for  patent   alone   responsible  for   charges   of   pub- 
lication), publish  a  notice  of  such  application  for  the  period 
of    sixty    days    in    a    newspaper    published    nearest    to    the 
claim,  and  will  post  a  copy  of  such  notice  in  his  office  for 
the  same  period.      When  the  notice  is  published  in  a  iveekly 
newspaper,   nine  consecutive  insertions  are  necessary;  when 
in  a  daily  newspaper,  the  notice  must  appear  in  each  issue 
for    sixty-one    consecutive    issues.       In    both    cases   the   first 
day  of  issue  must  be  excluded  in  estimating  the  period   of 
sixty  days. 

46.  The  notices  so  published  and  posted  must  embrace  all 
the   data  given    in   the   notice   posted   upon   the   claim.       In 
addition    to    such    data    the    published    notice   must    further 
indicate    the   locus    of   the    claim    by    giving    the    connecting 
line,  as  shown  by  the  field  notes  and  plat,  between  a  corner 


LAND  OFFICE  RULES.  355 

of  the  claim  and  a  United  States  mineral  monument  or  a 
corner  of  the  public  survey,  and  thence  the  boundaries  of 
the  claim  by  courses  and  distances. 

47.  The  register  shall  publish  the  notice  of  application  for 
patent  in  a  paper  of  established  character  and  general  cir- 
culation,  to  be   by   him   designated  as  being  the  newspaper 
published  nearest  the  land. 

48.  Surveyor-General's   Certificate    of   $500    Improvements. — 
The  claimant  at  the  time  of  filing  the  application  for  patent, 
or  at  any  time  within  the  sixty  days  of  publication,  is  required 
to  file  with  the  register,  a  certificate  of  the  surveyor-general 
that  not  less  than  five  hundred  dollars'  worth  of  labor  has 
been  expended  or  improvements  made,  by  the  applicant  or  his 
grantors,   upon   each   location   embraced    in    the   application, 
or  if  the  application  embraces  several  locations  held  in  com- 
mon, that  an  amount  equal  to  five  hundred  dollars  for  each 
location,  has  been  so  expended  upon,  and  for  the  benefit  of, 
the  entire  group  ;  that  the  plat  filed  by  the  claimant  is  cor- 
rect ;    that   the   field   notes   of   the   survey,    as   filed,   furnish 
such  an  accurate  description  of  the   claim   as  will   if  incor- 
porated in  a  patent  serve  to  fully  identify  the  premises  and 
that  such  reference  is  made  therein  to   natural   objects   or 
permanent  monuments  as  will  perpetuate  and  fix   the  locus 
thereof :     Provided,  That  as   to   all   applications   for   patent 
made   and  passed   to   entry   before   July    1,    1898,    or   which 
are    by    protests    or    adverse    claims    prevented    from    being 
passed  to  entry  before  that  time,  where  the  application  em- 
braces several  locations  held  in  common,  proof  of  an  expend- 
iture of  five  hundred  dollars  upon  the  group  will  be  sufficient 
and  an  expenditure  of  that   amount  need  not  be  shown   to 
have   been   made  upon,   or  for   the  benefit   of,   each   location 
embraced  in  the  application. 

49.  The   surveyor-general   may   derive  his   information   upon 
which    to   base   his   certificate  as   to   the  value   of   labor   ex- 
pended or  improvements  made  from  his  deputy  who  makes 
the  actual  survey  and  examination  upon  the  premises,   and 
such  deputy   should  specify  with   particularity  and  full   de- 
tail  the   character   and   extent   of  such   improvements. 

50.  It  will  be  the  more  convenient  way  to  have  this  certifi- 
cate  indorsed   by   the   surveyor-general,   both   upon   the   plat 
and  field  notes  of  survey  filed  by  the  claimant  as  aforesaid. 

51.  Proof  of  Publication  and  of  Plat  Remaining  Posted. — 
After  the   sixty   days'   period  of   newspaper   publication   has 
expired,   the   claimant  will   furnish   from    the   office   of   pub- 
lication   a   sworn   statement   that  the   notice   was   published 
for   the   statutory   period,   giving   the   first   and   last   day   of 
such   publication,    and   his    own    affidavit   showing   that   the 
plat    and    notice    aforesaid    remained     conspicuously     posted 
upon  the  claim  sought  to  be  patented  during  said  sixty  days' 
publication,  giving  the  dates. 

52.  Entry — Price — Proof  of  Sums   Paid, — Upon    the    filing 
of  this  affidavit  the  register  will,   if  no  adverse  claim  was 


356  LAND  OFFICE  RULES. 

filed  in  his  office  during  the  period  of  publication,  permit 
the  claimant  to  pay  for  the  land  according  to  the  area 
given  in  the  plat  and  field  notes  of  survey  aforesaid,  at  the 
rate  of  five  dollars  for  each  acre  and  five  dollars  for  each 
fractional  part  of  an  acre,  except  as  otherwise  provided  by 
law,  the  receiver  issuing  the  usual  duplicate  receipt  therefor. 
The  claimant  will  also  make  a  sworn  statement  of  all 
charges  and  fees  paid  by  him  for  publication  and  surveys, 
together  with  all  fees  and  money  paid  the  register  and  re- 
ceiver of  the  land  office,  after  which  the  complete  record 
will  be  forwarded  to  the  Commissioner  of  the  General  Land 
Office  and  a  patent  issued  thereon  if  found  regular. 

53.  Protest  Prior  to  Patent. — At   any  time   prior   to  the 
issuance  of  patent,  protest  may  be  filed  against  the  patent- 
ing of  the  claim  as  applied  for,  upon  any  ground  tending  to 
show  that  the  applicant  has  failed  to  comply  with  the  law 
in  a  matter  which  would  avoid  the  claim.     Such  protest  can 
not,   however,   be  made   the   means   of  preserving   a   surface 
conflict  lost  by  failure  to  adverse  or  lost  by  the  judgment 
of  the  court  in  an  adverse  suit.     One  holding  a  present  joint 
interest  in  a  mineral  location  included  in  an  application  for 
patent   who   is   excluded  from    the   application,    so   that   his 
interest  would  not  be  protected  by  the  issue  of  patent  thereon, 
may  protest  against  the  issuance  of  a  patent  as  applied  for, 
setting  forth  in  such  protest  the  nature  and  extent  of  his 
interest   in    such   location,    and    such    a    protestant   will    be 
deemed  a  party  in  interest  entitled  to  appeal.     This  results 
from  the  holding  that  a  coowner  excluded  from  an  applica- 
tion for  patent  does  not  have  an  "adverse"  claim  within  the 
meaning  of  sections  2325  and  2326  of  the  Revised  Statutes. 
See  Turner  v.  Sawyer,  150  U.  8.  578-586. 

54.  Any  party  applying  for  patent  as  trustee  must  disclose 
fully  the  natur*  of  the  trust  and  the  name  of  the  cestui  que 
trust;  and  such  trustee,   as  well  as  the  beneficiaries,  must 
furnish  satisfactory  proof  of  citizenship  ;  and  the  names  of 
beneficiaries,    as   well    as    that   of    the   trustee,    must   be   in- 
serted in  the  final  certificate  of  entry. 

55.  The  annual  expenditure  of  one  hundred  dollars  in  labor 
or  improvements  on  a  mining  claim,  required  by  section  2324 
of  the  Revised  Statutes,  is  solely  a  matter  between  rival  or 
adverse  claimants  to  the  same  mineral  land,  and  goes  only 
to   the   right   of  possession,   the   determination   of   which   is 
committed  exclusively  to  the  courts. 

56.  Failure  to  Prosecute  Application  Diligently. — The  fail- 
ure of  an  applicant  for  patent  to  a  mining  claim  to  prose- 
cute his   application  to   completion,   by   filing  the   necessary 
proofs  and  making  payment  for  the  land,  within  a  reason- 
able time  after  the  expiration  of  the  period  of  publication  of 
notice  of  the  application,  or  after  the  termination  of  adverse 
proceedings  in  the  courts,  constitutes  a  waiver  by  the  ap- 
plicant   of    all    rights    obtained    by    the    earlier    proceedings 
upon  the  application. 


LAND  OFFICE  RULES.  357 

57.  Idem — Prosecution   Delayed  by  Adverse. — The  proceed- 
ings necessary  to  the  completion  of  an  application  for  patent 
to  a  mining  claim,  against  which  an   adverse  claim   or   pro- 
test has  been  filed,   if  taken  by  the   applicant   at  the  first 
opportunity   afforded  therefor   under   the    law     and    depart- 
mental practice,  will  be  as  effective  as  if  taken  at  the  date 
when,  but  for  the  adverse  claim  or  protest,  the  proceedings 
on  the  application  could  have  been  completed. 

PLACER    CLAIMS.* 

58.  On  Surveyed  Lands. — The  proceedings  to  obtain  pat- 
ents  for  placer   claims,   including   all   forms   of   mineral   de- 
posits excepting  veins  of  quartz  or  other  rock  in  place,  are 
similar  to-  the  proceedings  prescribed  for   obtaining  patents 
for  vein  or  lode  claims  ;   but  where  a  placer  claim  shall  be 
upon    surveyed    lands,    and    conforms    to    legal    subdivisions, 
no  further  survey  or  plat  will   be  required.      Where  placer 
claims  can   not  be   conformed  to   legal   subdivisions,    survey 
and  plat  shall  be  made  as  on  unsurveyed  lands. 

59.  Two  Dollars  and  Fifty  Cents  Per  Acre. — The  proceed- 
ings for  obtaining  patents  for  veins  or  lodes  having  already 
been   fully   given,    it  will    not   be  necessary   to   repeat   them 
here,  it  being  thought  that  careful  attention  thereto  by  ap- 
plicants and  the  local  officers  will  enable  them  to  act  under- 
standingly  in  the  matter,  and  make  such  slight  modifications 
in   the   notice,    or   otherwise,   as   may   be  necessary   in   view 
of  the  different  nature  of  the  two  classes  of  claims  ;  placer 
claims  being  fixed,  however,  at  two  dollars  and  fifty  cents  per 
acre,  or  fractional  part  of  an  acre. 

60.  Classification     of     the     Land — Descriptive     Report. — In 
placer  applications  for  patent  care  must  be  exercised  to  de- 
termine the  proper  classification  of  the  lands   claimed.     To 
this  end  the  clearest  evidence  of  which  the  case  is  capable 
should  be  presented. 

(1)  If  the  claim  be  all  placer  ground,  that  fact  must 
be  stated  in  the  application  and  corroborated  by  accompany- 
ing proofs  ;  if  of  mixed  placers  and  lodes,  it  should  be  so  set 
out,  with  a  description   of  all   known   lodes   situated  within 
the   boundaries   of  the   claim.       A   specific  declaration,   such 
as  is   required   by  section   2333,    Revised   Statutes,    must   be 
furnished  as  to  each  lode  intended  to  be  claimed.     All  other 
known   lodes  are,  by  the  silence   of  the  applicant,   excluded 
by   law   from   all   claim   by  him,   of  whatsoever  nature,   pos- 
sessory or  otherwise. 

(2)  Deputy    surveyors   shall,    at    the   expense   of   the 
parties,  make  full  examination  of  all  placer  claims  surveyed 
by   them,   and  duly   note  the  facts   as  specified  in  the   law, 
stating   the   quality   and   composition    of   the    soil,   the   kind 
and  amount  of  timber  and  other  vegetation,  the   locus   and 
size  of  streams,  and  such  other  matters  as  may  appear  upon 
the  surface  of  the  claim.      This  examination  should  include 

*See,  also,  Regulations  19-30. 


358  LAND  OFFICE  RULES. 

the  character   and  extent   of  all   surface    and     underground 
workings,  whether  placer  or  lode,  for  mining  purposes. 

(3)  In  addition  to  these  data,  which  the  law  requires 
to  be  shown  in  all  cases,  the  deputy  should  report  with  ref-% 
erence  to  the   proximity    of   centers   of   trade   or   residence;' 
also  of  well-known  systems  of  lode  deposit  or  of  individual 
lodes.      He  should  also  report  as  to  the  use  or  adaptability 
of    the   claim   for   placer   mining ;   whether   water   has   been 
brought    upon   it   in    sufficient   quantity    to   mine   the   same, 
or  whether  it  can  be  procured  for  that  purpose  ;  and,  finally, 
what  works  or  expenditures  have  been  made  by  the  claimant 
or  his  grantors  for  the  development  of  the  claim,  and  their 
situation  and  location  with  respect  to  the  same  as  applied 
for. 

(4)  This  examination  should  be  reported  by  the  deputy 
under  oath  to  the  surveyor-general,  and  duly  corroborated  ; 
and  a  copy  of  the  same  should  be  furnished  with  the  appli- 
cation for  patent  to  the  claim,  constituting  a  part  thereof, 
and  included  in  the  oath  of  the  applicant. 

(5)  Applications   awaiting   entry,    whether   published 
or  not,  must  be  made  to  conform  to  these  regulations,  with 
respect    to    examination    as    to    the    character    of   the   land. 
Entries  already  made  will  be  suspended  for  such  additional 
proofs  as  may  be  deemed  necessary  in  each  case. 

MILL  SITES. 

61,  Land  entered  as  a  mill  site  must  be  shown  to  be  non- 
mineral.       Mill   sites  are  simply   auxiliary    to    the    working 
of  mineral  claims,  and  as  section  2337,   which  provides  for 
the  patenting   of  mill   sites,  is   embraced  in  the  chapter   of 
the    Revised    Statutes    relating    to   mineral    lands,    they    are 
therefore  included  in  this   circular. 

62,  Noncontiguous    to    Lode — Independent    Application, — To 
avail    themselves   of   this   provision    of   law    parties   holding 
the  possessory   right   to  a  vein  or   lode,   and  to  a  piece   of 
nonmineral  land  not  contiguous  thereto  for  mining  or  mill- 
ing purposes,   not  exceeding   the  quantity   allowed  for   such 
purpose    by   section   2337,    or    prior    laws,    under   which    the 
land'  was  appropriated,  the  proprietors  of  such  vein  or  lode 
may   file    in   the   proper   land   office   their   application   for   a 
patent,  under  oath,  in  manner  already  set  forth  herein,  which 
application,  together  with  the  plat  and  field  notes,  may  in- 
clude,   embrace,    and    describe,    in    addition    to    the    vein    or 
lode,  such  noncontiguous  mill  site,  and  after  due  proceedings 
as  to  notice,  etc.,  a  patent  will  be  issued  conveying  the  same 
as   one  claim.      The  owner  of  a  patented  lode  may,   by  an 
independent  application,  secure  a  mill  site  if  good  faith   is 
manifest   in   its    use   or   occupation   in   connection   with   the 
lode  and  no  adverse  claim  exists. 

63,  Lots  "A"  and  "B," — Where  the  original  survey   in- 
cludes a  lode  claim  and  also  a  mill  site  the  lode  claim  should 
be  described  in  the  plat  and  field  notes  as  "Sur.  No.  37,  A," 
and  the  mill  site  as  "Sur.  No.  37,  B,"  or  whatever  may  be 


LAND  OFFICE  RULES.  359 

its  appropriate  numerical  designation  ;  the  course  and  dis- 
tance from  a  corner  of  the  mill  site  to  a  corner  of  the  lode 
claim  to  be  invariably  given  in  such  plat  and  field  notes, 
and  a  copy  of  the  plat  and  notice  of  application  for  patent 
must  he  conspicuously  posted  upon  the  mill  site  as  well 
as  upon  the  vein  or  lode  for  the  statutory  period  of  sixty 
days.  In  making  the  entry  no  separate  receipt  or  certifi- 
cate need  be  issued  for  the  mill  site,  but  the  whole  area 
of  both  lode  and  mill  site  will  be  embraced  in  one  entry, 
the  price  being  five  dollars  for  each  acre  and  fractional 
part  of  an  acre  embraced  by  such  lode  and  mill-site  claim. 

64.  Mill  Site  Without  Lode. — In    case    the    owner    of    a 
quartz  mill  or  reduction  works  is  not  the  owner  or  claimant 
of  a  vein  or  lode  the  law  permits  him  to  make  application 
therefor  in  the   same   manner   prescribed   herein  for   mining 
claims,  and  after  due  notice  and  proceedings,  in  the  absence 
of  a  valid  adverse  filing,  to  enter  and  receive  a  patent  for 
his  mill  site  at  said  price  per  acre. 

65.  In  every  case  there  must  he  satisfactory  proof  that  the 
land   claimed   as    a   mill    site   is    not   mineral    in   character, 
which  proof  may,  where  the  matter  is  unquestioned,  consist 
of  the  sworn  statement  of  two  of  more  persons  capable,  from 
acquaintance  with  the  land,  to  testify  understandingly. 

CITIZENSHIP. 

66.  The  proof  necessary  to  establish  the  citizenship  of  ap- 
plicants for  mining  patents  must  be  made  in  the  following 
manner :      In   case   of  an   incorporated   company,   a   certified 
copy  of  their  charter  or  'certificate  of  incorporation  must  be 
filed.      In  case  of  an  association  of  persons  unincorporated, 
the  affidavit  of  their  duly  authorized  agent,  made  upon  his 
own    knowledge    or    upon    information    and    belief,    setting 
forth  the  residence  of  each  person  forming  such  association, 
must  be  submtted.      This  affidavit  must  be  accompanied  by 
a  power  of  attorney  from  the  parties  forming  such   associ- 
ation,   authorizing   the    person   who   makes   the    affidavit    of 
citizenship  to  act  for  them  in  the  matter  of  their  applica- 
tion for  patent. 

67.  In  case  of  an  individual  or  an  association  of  individuals 
who  do  not  appear  by  their  duly  authorized  agent,  you  will 
require  the  affidavit  of  each  applicant,  showing  whether  he 
is   a   native    or   naturalized   citizen,    when   and   where   born, 
and  his  residence. 

68.  In  case  an  applicant  has  declared  his  intention  to  he- 
come   a   citizen   or  has   been  naturalized,   his  affidavit   must 
show  the  date,  place,  and  the  court  before  which  he  declared 
his   intention,    or   from   which    his   certificate   of   citizenship 
issued,  and  present  residence. 

69.  The  affidavit  of  the  claimant  as  to  his  citizenship  may 
be  taken  before  the  register  or  receiver,  or  any  other  officer 
authorized  to  administer  oaths  within  the  land  district ;  or, 
if  the  claimant  is  residing  beyond  the  limits  of  the  district,  • 
the  affidavit  may  be  taken  before  the  clerk  of  any  court  of 


360  LAND  OFFICE  RULES. 

record  or   before   any  notary  public   of  any   State   or  Terri- 
tory. 

70.  Proof   by   Disinterested  Witnesses. — If    citizenship    is 
established  by  the  testimony   of  disinterested  persons,  such 
testimony   may    be   taken    at    any    place   before   any    person 
authorized  to  administer  oaths,  and  whose  official  character 
is  duly  verified. 

71.  Scrutiny  of  Proofs, — No  entry  will   be  allowed  until 
the   register   has   satisfied   himself,    by    careful    examination, 
that  proper  proofs  have  been  filed  upon  the  points  indicated 
in   the   law   and   official   regulations.       Transfers   made   sub- 
sequent to  the  filing  of  the  application  for  patent  will  not 
be  considered,  but  entry  will  be  allowed  and  patent  issued 
in   all   cases   in   the  name  of   the  applicant  for   patent,   the 
title   conveyed   by    the    patent,    of   course,    in   each   instance 
inuring  to  the  transferee  of  such  applicant  where  a  transfer 
has  been  made  pending  the  application  for  patent. 

72.  The    consecutive    series   of   numbers   of   mineral   entries 
must  be  continued,   whether  the  same  are  of  lode  or  placer 
claims  or  mill  sites. 

73.  Register's  Certificate  of  Posting  in  Land  Office — Plat. — 
In  sending  up  the   papers  in  a   case  the  register  must  not 
omit   certifying  to   the  fact  that  the  notice  was   posted   in 
his  office  for  the  full   period  of  sixty  days,  such   certificate 
to   state   distinctly   when   such   posting   was   done   and  *  how 
long  continued.       The  plat  forwarded   as  part  of  the  proof 
should  not  be  folded,  but  rolled,  so  as  to  prevent  creasing, 
and  either  transmitted  in  a  separate  package  or  so  enclosed 
with  the  other  papers  that  it  may  pass  through  the  mails 
without   creasing   or  mutilation.       If   forwarded   separately, 
the  letter  transmitting  the  papers  should  state  the  fact. 

POSSESSORY    RIGHT. 

74.  Chain  of  Title  Broken,  "but  Possession  Clear. — The  pro- 
visions of  section  2332,  Revised  Statutes,  will  greatly  lessen 
the   burden   of  proof,   more  especially   in    the    case    of    old 
claims    located    many    years    since,    the    records    of    which, 
in  many  cases,  have  been  destroyed  by  fire,  or  lost  in  other 
ways  during  the  lapse  of  time,  but  concerning  the  possessory 
right  to  which  all   controversy   or  litigation   has   long  been 
settled. 

75.  Details  of  Proof  in  Such  Case. — When    an    applicant 
desires  to  make  his  proof  of  possessory  right  in  accordance 
with  this  provision  of  law,  he  will  not  be  required  to  produce 
evidence  of  location,  copies   of  conveyances,  or  abstracts  of 
title,   as  in   other  cases,  but  will   be   required  to  furnish   a 
duly   certified   copy   of  the   statute   of   limitation   of   mining 
claims  for  the  State  or  Territory,  together  with  his  sworn 
statement  giving  a  clear  and  succinct  narration  of  the  facts 
as  to  the  origin  of  his  title,  and  likewise  as  to  the  contin- 
uation of  his   possession   of  the   mining  ground   covered   by 
his  application  ;  the  area  thereof ;  the  nature  and  extent  of 


LAND  OFFICE  RULES.  361 

the  mining  that  has  been  done  thereon  ;  whether  there  has 
been  any  opposition  to  his  possession,  or  litigation  with  re- 
gard to  his  claim  and,  if  so,  when  the  same  ceased :  whether 
such  cessation  was  caused  by  compromise  or  by  judicial  de- 
cree, and  any  additional  facts  within  the  claimant's  knowl- 
edge having  a  direct  bearing  upon  his  possession  and  bona 
fides  which  he  may  desire  to  submit  in  support  of  his  claim. 

76.  There   should  likewise  be  filed  a  certificate,  under  seal 
of    the    court    having    jurisdiction    of    mining    cases    within 
the  judicial   district   embracing  the   claim,    that   no   suit   or 
action  of  any  character  whatever  involving  the  right  of  pos- 
session to  any  portion  of  the  claim  applied  for   is  pending, 
and    that    there    has    been    no    litigation    before    said    court 
affecting  the  title  to  said  claim   or  any  part  thereof  for  a 
period  equal  to  the  time  fixed  by  the  statute  of  limitations 
for   mining   claims   in    the   State   or   Territory   as   aforesaid, 
other  than  that  which  has  been  finally  decided  in  favor  of 
the  claimant. 

77.  The  claimant  should  support  his  narrative  of  facts  rela- 
tive to  his  possession,  occupancy,  and  improvements  by  cor- 
roborative testimony  of  any  disinterested  person  or  persons 
of  credibility  who  may  be  cognizant  of  the  facts  in  the  case 
and  are  capable  of  testifying  understandingly  in  the  prem- 
ses. 

ADVERSE    CLAIMS. 

78.  An  adverse  mining  claim  must  be  filed  with  the  register 
and   receiver   of   the   land    office    where   the    application    for 
patent   was  filed,   or  with   the   register  and  receiver   of  the 
district  in  which  the  land  is  situated  at  the  time  of  filing 
the  adverse  claim.      It  must  be  on  the  oath  of  the  adverse 
claimant,    or   it   may   be   verified   by   the   oath   of   any    duly 
authorized  agent  or  attorney  in  fact  of  the   adverse  claim- 
ant cognizant  of  the  facts  stated. 

79.  Where  an  agent  or  attorney  in  fact  verifies  the  adverse 
claim,  he  must  distinctly  swear  that  he  is  such  agent  or  at- 
torney, and  accompany  his  affidavit  by  proof  thereof. 

80.  The  agent  or  attorney  in  fact  must  make  the  affidavit 
in  verification  of  the  adverse  claim  within  the  land  district 
where  the  claim  is  situated. 

81.  The  adverse  notice  must  fully  set  forth  the  nature  and 
extent  of  the  interference   or  conflict ;  whether  the   adverse 
party   claims  as   a   purchaser   for   valuable   consideration   or 
as  a  locator  ;  if  the  former,  a  certified  copy  of  the  original 
location,    the   original     conveyance,     a     duly     certified     copy 
thereof,  or  an  abstract  of  title  from  the  office  of  the  proper 
recorder  should   be  furnished,   or   if   the   transaction   was   a 
merely  verbal  one  he  will  narrate  the  circumstances  attend- 
ing the  purchase,   the   date   thereof,    and   the   amount   paid, 
which  facts  should  be  supported  by  the  affidavit  of  one  or 
more   witnesses,    if   any   were   present    at    the   time,    and    if 
he  claims  as  a  locator  he  must  file  a  duly  certified  copy  o* 
the  location  from  the  office  of  the  proper  recorder. 


362  LAND  OFFICE  RULES. 

82.  Plat   of   Conflict — Legal   Subdivisions. — In     order     that 
the  "boundaries"  and  "extent"  of  the  claim  may  be  shown, 
it  will  be  incumbent  upon  the  adverse  claimant  to  file  a  plat 
showing  his   entire  claim,   its  relative  situation  or  position 
with  the  one  against  which  he  claims,  and  the  extent  of  the 
conflict :     Provided,  however,  That  if  the  application  for  pat- 
ent  describes    the   claim   by   legal   subdivisions,   the   adverse  ' 
claimant,    if   also    claiming    by    legal    subdivisions,    may    de- 
scribe his  adverse  claim   in   the  same  manner  without  fur- 
ther survey  or  plat.      If  the  claim  is  not  described  by  legal 
subdivisions,  it  will  generally  be  more  satisfactory  if  the  plat 
thereof  is  made  from  an  actual  survey  by  a  deputy  mineral 
survevor,   and   its   correctness   officially   certified   thereon   by 
him. 

83.  Notice  of  Filing  Adverse. — Upon  the  foregoing  being 
filed  within  the  sixty  days'   publication,   the   register,  or  in 
his  absence  the  receiver,  will  give  notice  in  writing  to  both 
parties  to  the  contest  that  such  adverse  claim  has  been  filed, 
informing  them  that  the  party  who  filed  the  adverse  claim 
will  be  required  within  thirty  days  from  the  date   of  such 
filing  to  commence  proceedings  in  a  court  of  competent  juris- 
diction   to   determine   the    question    of    right    of   possession, 
and  to  prosecute  the  same  with  reasonable  diligence  to  final 
judgment,  and  that,  should  such  adverse  claimant  fail  to  do 
so,  his  adverse  claim  will  be  considered  waived,  and  the  ap- 
plication for  patent  be  allowed  to  proceed  upon  its  merits. 

84.  Adverse   Stays   Proceedings. — When   an   adverse   claim 
is   filed   as   aforesaid,   the   register   or   receiver   will    indorse 
upon  the  same  the  precise  date  of  filing,  and  preserve  a  rec- 
ord of  the  date  of  notifications  issued  thereon  ;  and  thereafter 
all   proceedings   on   the   application  for   patent   will   be   sus- 
pended,  with  the  exception  of  the  completion  of  the  publi- 
cation and  posting  of  notices  and  plat,  and  the  filing  of  the 
necessary    proof    thereof,    until    the   controversy    shall    have 
been   adjudicated   in  court,   of  the  adverse   claim  waived   or 
withdrawn. 

85.  Copy  of  Judgment. — Where  an  adverse  claim  has  been 
filed  and  suit  thereon  commenced  within  the  statutory  period, 
and   final   judgment   rendered   determining  the  right  of  pos- 
session, it  will  not  be  sufficient  to  file  with  the  register  a 
certificate  of  the  clerk  of  the  court,  setting  forth  the  facts 
as  to  such  judgment,  but  the  successful  party  must,   before 
he  is  allowed  to  make  entry,  file  a  certified  copy  of  the  judg- 
ment, together  with  the  other  evidence  required  by   section 
2326,  Revised  Statutes. 

86.  Where  such  suit  has  been  dismissed,  a  certificate  of  the 
clerk  of  the  court  to   that  effect  or   a  certified  copy  of  the 
order  of  dismissal  will  be  sufficient. 

87.  Relinqu;shment     After     Adverse. — After     an     adverse 
claim  has  been  filed  and  suit  commenced,   a  relinquishment 
or  other  evidence  of  abandonment  of  the  adverse  claim  will 
not  be  accepted,  but  the  case  must  be  terminated  and  proof 
thereof  furnished  as  required  by  the  last  two  paragraphs. 


LAND  OFFICE  RULES.  363 

88.  Certificate   of   No   Suit  Brought. — Where    an    adverse 
claim  has  been  filed,  but  no  suit  commenced  against  the  ap- 
plicant for  patent  within  the  statutory  period,  a  certificate 
to  that  effect  by  the  clerk  of  the  State  court  having  jurisdic- 
tion in  the  case,  and  also  by. the  clerk  of  the  circuit  court  of 
the   United    States   for   the   district   in    which   the   claim    is 
situated,  will  be  required. 

APPOINTMENT    OF    DEPUTIES    FOR    SURVEY    OF    MINING    CLAIMS 

CHARGES   FOR   SURVEYS   AND  PUBLICATIONS FEES  OF  REG- 
ISTERS  AND   RECEIVERS.,    ETC. 

89.  Newspaper   Charges.— Section   2334   provides   for   the 
appointment  of  surveyors  to  survey  mining  claims,  and  au- 
thorizes the  Commissioner  of  the  General  Land  Office  to  es- 
tablish  the  rates  to  be  charged  for  surveys   and  for  news- 
paper publications.       Under   this   authority   of   law    the   fol- 
lowing rates  have  been  established  as  the  maximum  charges 
for  newspaper  publications  in  mining  cases  : 

(1)  Where  a  daily  newspaper  is  designated  the  charge 
shall   not  exceed  seven   dollars   for  each   ten   lines   of  space 
occupied,   and   where   a   weekly   newspaper   is   designated   as 
the  medium   of  publication   five  dollars  for   the  same  space 
will    be    allowed.       Such    charge    shall    be    accepted    as    full 
payment  for  publication  in  each  issue  of  the  newspaper  for 
the  entire  period  required  by  law. 

It  is  expected  that  these  notices  shall  not  be  so  abbre- 
viated as  to  curtail  the  description  essential  to  a  perfect  no- 
tice, and  the  said  rates  established  upon  the  understanding 
that  they  are  to  be  in  the  usual  body  type  used  for  adver- 
tisements. 

(2)  For   the  publication   of   citations   in   contests    or 
hearings  involving  the  character  of  lands  the  charges  shall 
not    exceed    eight,    dollars    for    five    publications    in    weekly 
newspapers   or   ten    dollars   for   publications   in   daily   news- 
papers for  thirty  days. 

90.  Appointment  of  Deputy  Surveyors — Bond. — The  survey- 
ors-general   of   the   several    districts    will,    in    pursuance    of 
said  law,  appoint  in  each   land  district  as  many   competent 
surveyors  for  the  survey  of  mining  claims  as  may  seek  such 
appointment,    it   being   distinctly   understood     that     all     ex- 
penses   of    these    notices    and    surveys    are    to    be    borne    by 
the  mining   claimants   and  not  by   the  United   States.      The 
statute  provides  that  the   claimant  shall  also   be  at  liberty 
to  employ  any  United   States  deputy   surveyor  to  make  the 
survey.      Each  surveyor  appointed  to  survey  mining  claims 
before  entering  upon  the  duties  of  his  office  or  appointment 
shall   be   required   to   enter  into  such   bond  for   the  faithful 
performance    of    his    duties    as    may    be    prescribed    by    the 
regulations  of  the  land  department  in  force  at  that  time. 

91.  Surveyor-General's   Fees. — With    regard     to     the   plat- 
ting of  the  claim  and  other  office  wor'k  in  the  surveyor-gen- 
eral's office,  that  officer  will  make  an  estimate  of  the  cost 
thereof,   which   amount  the  claimant  will   deposit  with   any 


364  LAND  OFFICE  RULES. 

assistant  United  States  treasurer  or  designated  depository 
in  favor  of  the  United  States  Treasurer,  to  be  passed  to  the 
credit  of  the  fund  created  by  "individual  depositors  for  sur- 
veys of  the  public  lands,"  and  file  with  the  surveyor-gen- 
eral duplicate  certificates  of  such  deposit  in  the  usual  man- 
ner. 

92,  Deputies    for    Each    District. — The    surveyors-general 
will  endeavor  to  appoint  surveyors  to  survey  mining  claims, 
so  that  one  or  more  may  be  located  in  each  mining  district 
for  the  greater  convenience  of  miners. 

93,  The  usual  oaths  will  "be  required  of  these  surveyors  and 
their   assistants   as   to   the   correctness   of   each   survey   exe- 
cuted by  them. 

The  duty  of  the  surveyor  ceases  when  he  has  executed 
the  survey  and  returned  the  field  notes  and  preliminary  plat 
thereof  with  his  report  to  the  surveyor-general.  He  will 
not  be  allowed  to  prepare  for  the  mining  claimant  the  papers 
in  support  of  an  application  for  patent,  or  otherwise  per- 
form the  duties  of  an  attorney  before  the  land  office  in 
connection  with  a  mining  claim. 

The  surveyors-general  and  local  land  officers  are  ex- 
pected to  report  any  infringement  of  this  regulation  to  this 
office. 

94,  Should   it   appear   that   excessive   or  exorbitant   charges 
have  been  made  by  any  surveyor  or  any  publisher,   prompt 
action  will  be  taken  with  the  view  of  correcting  the  abuse. 

95,  The  fees  payable  to  the  register  and  receiver  for  filing 
and   acting   upon   applications   for   mineral-land  patents   are 
five  dollars  to  each  officer,  to  be  paid  by  the  applicant  for 
patent  at  the  time  of  filing,  and  the  like  sum  of  five  dollars 
is  payable  to  each  officer  by  an  adverse  claimant  at  the  time 
of  filing  his  adverse  claim.      (Sec.  2238,  R.  S.,  paragraph  9.) 

96,  Receipt  for  Fees. — At  the  time  of  payment  of  fee  for 
mining  application  or  adverse  claim  the  receiver  will  issue 
his   receipt  therefor   in   duplicate,    one   to   be  given   the   ap- 
plicant  or  adverse   claimant,   as   the  case   may   be,   and   one 
to  be  forwarded  to  the  Commissioner  of  the   General   Land 
Office   on  the  day   of  issue.      The   receipt  for  mining  appli- 
cation should   have   attached   the   certificate  of   the   register 
that   the   lands    included   in   the   application   are   subject   to 
such  appropriation,   as  far  as  shown  by  the  records   of  his 
office. 

97,  Monthly  Reports  to  General  Land  Office, — The  register 
and  receiver  will,   at  the   close   of   each   month,   forward  to 
this   office  an  abstract   of  mining  applications   filed,    an   ab- 
stract of  adverse  claims  filed,  an  abstract  of  mineral  lands 
sold,  and  a  report  of  receipts  from  such  sales. 

98,  The  fees  and  purchase  money  received  by  registers  and 
receivers  must  be  placed  to  the  credit  of  the  United  States 
in   the   receiver's   monthly   and   quarterly   account,    charging 
up  in  the  disbursing  account  the  sums  to  which  the  register 


LAND  OFFICE  RULES.  365 

and  receiver  may  be  respectively  entitled  as  fees  and  com- 
missions, with  limitations  in  regard  to  the  legal  maximum. 

HEARINGS    TO    DETERMINE    CHARACTER   OF    LANDS. 

99.  The  Rules  of  Practice  in  cases  before  the  United  States 
district   land   offices,    the  General   Land   Office,   and   the   De- 
partment of  the  Interior  will,   so  far   as  applicable,  govern 
in  all   cases   and  proceedings   arising   in   contests   and  hear- 
ings to  determine  the  mineral  character  of  lands. 

100.  Agricultural    Entry   of   Lands    Returned   as   Mineral. — 
Public    land    returned    by    the    surveyor-general    as    mineral 
shall  be  withheld  from  entry  as  agricultural  land  until  the 
presumption  arising  from   such  a   return  shall   be   overcome 
by  testimony  taken  in  the  manner  hereinafter  described. 

101.  Hearings  to  determine  the  character  of  lands  are  prac- 
tically of  two  kinds,  as  follows  : 

(1)  Lands  returned  as  mineral-  by  the  surveyor-gen- 
eral. 

When  such  lands  are  sought  to  be  entered  as  agricul- 
tural under  laws  which  require  the  submission  of  final  proof 
after  due  notice  by  publication  and  posting,  the  filing  of 
the  proper  nonmineral  affidavit  in  the  absence  of  allega- 
tions that  the  land  is  mineral  will  be  deemed  sufficient  as 
a  preliminary  requirement.  A  satisfactory  showing  as  to 
character  of  land  must  be  made  when  final  proof  is  sub- 
mitted. 

In  case  of  application  to  enter,  locate,  or  select  such 
lands  as  agricultural,  under  laws  in  which  the  submis- 
sion of  final  proof  after  due  publication  and  posting  is  not 
required,  notice  thereof  must  first  be  given  by  publication 
for  sixty  days  and  posting  in  the  local  land  office  during  the 
same  period,  and  affirmative  proof  as  to  the  character  of 
the  land  submitted.  In  the  absence  of  allegations  that  the 
land  is  mineral,  and  upon  compliance  with  this  requirement, 
the  entry,  location,  or  selection  will  be  allowed,  if  otherwise 
regular. 

(2)  Lands    returned    as    agricultural    and    alleged    to 
be  mineral  in  character. 

Where  as  against  the  claimed  right  to  enter  such  lands 
as  agricultural  it  is  alleged  that  the  same  are  mineral,  or 
are  applied  for  as  mineral  lands,  the  proceedings  in  this 
class  of  cases  will  be  in  the  nature  of  a  contest,  and  the 
practice  will  be  governed  by  the  rules  in  force  in  contest 
cases. 

102.  Where  a   railroad   company  seeks   to   select   lands  not 
returned  as  mineral,  but  within  six  miles  of  any  mining  lo- 
cation, claim,  or  entry,  or  where  in  the  case  of  a  selection 
by   a   State,   the  lands   sought  to   be   selected  are   within  a 
township  in  which  there  is  a  mining  location,  claim,  or  entry, 
publication  must  be  made  of  the  lands  selected   at  the  ex- 
pense of  the  railroad  company  or  State  for  a  period  of  sixty 
days,   with   posting  for   the  same  period   in  the   land   office 


366  LAND  OFFICE  RULES. 

for  the  district  in  which  the  lands  are  situated,  during 
which  period  of  publication  the  local  land  officers  will  re- 
ceive protests  or  contests  for  any  of  said  tracts  or  subdi- 
visions of  lands  claimed  to  be  more  valuable  for  mining 
than  for  agricultural  purposes. 

103,  Protests  Against  Railroad  Selections. — At  the  expira- 
tion  of  the  period   of  publication   the  register  and  receiver 
will    forward    to    the    Commissioner    of    the    General    Land 
Office  the  published  list,  noting  thereon  any  protests,  or  con- 
tests,   or    suggestions    as    to    the   mineral    character    of    any 
such   lands,   together  with  any   information  they   may   have 
received  as  to  the  mineral    character   of   any   of   the   lands 
mentioned  in  said  list,  when  a  hearing  may  be  ordered. 

104.  In  lieu  selections  under  the  acts  of  June  4,  1897,  and 
June  6,  1900,  of  land  which  has  been  returned  as  mineral, 
or  which  is  within  six  miles  of  any  mining  claim,  notice  of 
the    selection,    commencing    within    twenty    days    thereafter, 
must  be  given,  for  a  period  of  thirty  days,  by  posting  upon 
the  land  and  in  the  local  land  office,  and  by  publication  at 
the  cost  of  the  applicant  in  a  newspaper  designated  by  the 
register  as  of  general  circulation  in  the  vicinity  of  the  land 
and    published    nearest    thereto.      Where    the    selection    em- 
braces noncontiguous  tracts  the  notice  must  be  posted  upon 
each   tract ;    but   such    notice   will    not    be   required   in    any 
case  where  the  selection  is   in  lieu   of   "a  tract  covered   by 
an  unperfected  bona  fide  claim,"  viz.  :     A  tract  the  title  to 
which  has  not  passed  out  of  the  United  States  or  for  which 
patent  certificate  has  not  issued. 

105.  Examination   of   Witnesses. — At   the   hearings    under 
either  of  the  aforesaid  classes,  the  claimants  and  witnesses 
will   be   thoroughly   examined   with   regard  to  the   character 
of  the  land ;   whether   the  same   has   been   thoroughly   pros- 
pected ;  whether  or  not  there  exists  within  the  tract  or  tracts 
claimed  any   lode  or  vein  of  quartz  or  other  rock  in  place, 
bearing  gold,  silver,  cinnabar,  lead,  tin,  or  copper,  or  other 
valuable   deposit  which  has   ever   been  claimed,   located,   re- 
corded, or  worked ;  whether  such  work  is  entirely  abandoned, 
or  whether  occasionally  resumed ;  if  such  lode  does  exist,  by 
whom  claimed,  under  what  designation,  and  in  which  subdi- 
vision of  the  land  it  lies  ;  whether  any  placer  mine  or  mines 
exist  upon  the  land ;  if  so,  what  is  the  character  thereof — 
whether   of  the   shallow-surface   description,   or   of  the   deep 
cement,  blue  lead,  or  gravel  deposits  ;  to  what  extent  mining 
is  carried  on  when  water  can  be  obtained,  and  what  the  fa- 
cilities are  for  obtaining  water  for  mining  -purposes  ;   upon 
what  particular  ten-acre  subdivisions  mining  has  been  done, 
and  at  what  time  the  land  was  abandoned  for  mining  pur- 
poses, if  abandoned  at  all. 

106,  The  testimony  should  also  show  the  agricultural  capa- 
cities  of  the  land,   what  kind   of   crops  are  raised   thereon, 
and  the  value  thereof  ;  the  number  of  acres  actually  culti- 
vated for  crops  of  cereals  or  vegetables,   and  within  which 
particular  ten-acre  subdivision  such   crops   are   raised ;   also 


LAND  OFFICE  RULES.  367 

which  of  these  subdivisions  embrace  the  improvements,  giv- 
ing in  detail  the  extent  and  value  of  the  improvements, 
such  as  house,  barn,  vineyard,  orchard,  fencing,  etc.,  and 
mining  improvements. 

107.  The  testimony  should  be  as  full  and  complete  as  pos- 
sible :  and  in  addition  to  the  leading  points  indicated  above, 
where  an  attempt   is  made  to  prove  the  mineral   character 
of   lands   which    have    been    entered    under   the    agricultural 
laws,  it  should  show  at'what  date,  if  at  all,  valuable  deposits 
of  minerals  were  first  known  to  exist  on  the  lands. 

108.  Segregating   Mineral   from    Agricultural    Land. — When 
the  case  comes  before  this  office,  such  decision  will  be  made 
as  the  law   and   the  facts  may  justify.      In   cases  where  a 
survey   is  necessary  to  set  apart  the  mineral   from  the  ag- 
ricultural  land,  the  proper   party,  at  Ms  own  expense,  will 
be  required  to  have  the  work  done  by  a  surveyor  to  be  des- 
ignated by  the  surveyor-general.      Application  therefor  must 
be  made   to   the  register   and  receiver,    accompanied   by   de- 
scription   of    the    land    to   be    segregated    and   the    evidence 
of  service  upon  the  opposite  party  of  notice  of  his  intention 
to  have  such   segregation  made.     The   register  and  receiver 
will    forward   the   same   to   this    office,    when   the   necessary 
instructions  for   the   survey  will   be  given.      The   survey  in 
such  case,  where  the  claims  to  be  segregated  are  vein  or  lode 
claimsx  must   be   executed  in   such   manner  as  will    conform 
to  the  requirements  in  section  2320,  United  States  Revised 
Statutes,  as  to  length  and  width  and  parallel  end  lines. 

109.  Such  survey  when  executed  must  be  properly  sworn  to 
by  the  surveyor,  either  before  a  notary  public,   officer  of  a 
court  of  record,   or   before  the  register  or  receiver,   the  de- 
ponent's "character   and    credibility   to    be   properly    certified 
to  by  the  officer  administering  the  oath. 

110.  Verified  Plat  by  Surveyor-General. — Upon    the    filing 
of  the  plat  and  field  notes  of  such  survey  with  the  register 
and  receiver,   duly   sworn   to  as   aforesaid,   they   will   trans- 
mit the  same  to  the  surveyor-general  for  his  verification  and 
approval  ;    who,    if   he   finds    the   work    correctly    performed, 
will   furnish  authenticated  copies  of  such   plat  and  descrip- 
tion both  to  the  proper  local   land  office  and  to  this  office, 
made  upon  the  usual  drawing-paper  township  blank. 

The  copy  of  plat  furnished  the  local  office  and  this 
office  must  be  a  diagram  verified  by  the  surveyor-general, 
showing  the  claim  or  claims  segregated,  and  designating 
the  separate  fractional  agricultural  tracts  in  each  40-acre 
legal  subdivision  by  the  proper  lot  number,  beginning  with 
No.  1  in  each  section,  and  giving  the  area  in  each  lot,  the 
same  as  provided  in  paragraph  37  in  the  survey  of  mining 
claims  on  surveyed  lands. 

111.  Proceedings  if  Land  Decided  to  Be  Mineral.— The  fact 
that   a   certain  tract   of  land  is   decided  upon   testimony   to 
be   mineral   in   character   is   by   no  means   equivalent   to   an 
award   of  the  land  to  a  miner.       In   order  to  secure  a  pat- 


368  LAND  OFFICE  RULES. 

ent  for   such   land,   he   must   proceed   as  in    other   cases,    in 
accordance  with  the  foregoing  regulations 

Blank  forms  for  proofs  in  mineral  cases  are  not  fur- 
nished by  the  General  Land  Office. 

DISTRICT   OF   ALASKA. 

112.  Section  13,   act  of  May  14,   1898,   according  to  native- 
born  citizens  of  Canada  "the  same  mining  rights  and  priv- 
ileges" in  the  district  of  Alaska  as  are  accorded  to  citizens 
of  the  United  States  in  British  Columbia  and  the  Northwest 
Territory   by  the   laws   of  the   Dominion   of  Canada,   is   not 
now  and  never  has  been  operative,  for  the  reason  that  the 
only   mining    rights    and   privileges    granted    to   any    person 
by  the  laws   of  the  Dominion  of  Canada  are  those  of  leas- 
ing  mineral   lands    upon   the   payment   of  a   stated   royalty, 
and  the  mining  laws  of  the  United  States  make  no  provis- 
ion for  such  leases. 

113.  For  the  sections  of  the  act  of  June   6,    1900,   making 
further  provision  for  a  civil  government  for  Alaska,  which 
provide  for  the  establishment  of  recording  districts  and  the 
recording  of  mining  locations  ;  for  the  making  of  rules  and 
regulations  by  the  miners   and  for  the  legalization   of  min- 
ing  records  ;   for   the   extension   of  the  mining   laws   to   the 
district   of  Alaska,   and   for  the   exploration   and   mining   of 
tide  lands   and   lands   below   low  tide ;   and   relating   to   the 
rights    of    Indians    and    persons    conducting    schools    or    mis- 
sions, see  page  20  of  this  circular  (81  L.  D.  p.  j.70). 

MINERAL    LANDS    WITHIN    FOREST    RESERVES. 

114.  The  act  of  June  4,   1897,   provides  that   "any  mineral 
lands   in  any  forest  reservation  which  have   been   or  which 
may  be  shown  to  be  such,  and  subject  to  entry  under  the  ex- 
isting mining  laws  of  the  United  States  and  the  rules  and 
regulations    applying   thereto,    shall    continue   to    be    subject 
to  such  location  and  entry,"  notwithstanding  the  reservation. 
This  makes  mineral  lands  in  the  forest  reserves  subject  to 
location   and    entry   under   the   general    mining    laws   in   the 
usual  manner. 

The  act  also  provides  that,  "The  Secretary  of  the  In- 
terior may  permit,  under  regulations  to  be  prescribed  by 
him,  the  use  of  timber  and  stone  found  upon  such  reserva- 
tions, free  of  charge,  by  bona  fide  settlers,  miners,  residents, 
and  prospectors  for  minerals,  for  firewood,  fencing,  build- 
ings, mining,  prospecting,  and  other  domestic  purposes,  as 
may  be  needed  by  such  persons  for  such  purposes ;  such 
timber  to  be  used  within  the  State  or  Territory,  respectively, 
where  such  reservations  may  be  located." 

For  further  instructions  under  this  act  see  circular 
of  April  4,  1900  (30  L.  D.  23,  28-30.) 


LAND  OFFICE  RULES.  369 

SURVEYS  OF  MINING  CLAIMS.* 

GENERAL   PROVISIONS. 

115.  Appointment  of  Deputies.— Under  section  2334,  U.  S. 
Rev.  Stats.,  the  U.  S.  surveyor-general -"may  appoint  in  each 
land  district   containing  mineral    lands   as   many   competent 
surveyors  as  shall  apply  for  appointment  to  survey  mining 
claims." 

116.  Persons    desiring    such    appointments    should    therefore 
file  their  applications  with  the  surveyor-general  for  the  dis- 
trict  wherein    appointment    is   asked,    who    will   furnish    all 
information  necessary. 

117.  All  appointments  of  deputy  mineral  surveyors  must  be 
submitted   to  the   Commissioner   of   the   General   Land  Office 
for  approval. 

118.  Suspension   of  Deputy. — The   surveyors-general   have 
authority  to  suspend   or  revoke  the  commissions   of   deputy 
mineral  surveyors  for  cause.      Before  final  action,  however, 
the    matter    should    be    submitted   to    the    Commissioner    of 
the  General  Land  Office  for  approval. 

119.  Such  surveyors  will  be  allowed  the  right  of  appeal  from 
the   action   of   the   surveyor-general    in     the    usual    manner. 
Such  appeal  should  be  filed  with  the  surveyor-general,  who 
will   at  once  transmit  the  same,   with  a  full  report,  to  the 
General  Land  Office. 

120.  Investigation  of  Deputy's  Charges. — Neither  the  sur- 
veyor-general   nor    the    Commissioner    of   the    General    Land 
Office  has  jurisdiction   to   settle   differences,   relative  to   the 
payment  of  charges  for  field  work,  between  deputy  mineral 
surveyors    and    claimants.       These    are    matters    of    private 
contract  and  must  be  enforced  in  the  ordinary  manner,  i.  e.f 
in  the  local  courts.      The  Department  has,  however,  author- 
ity  to   investigate   charges    affecting   the    official    actions    of 
deputy  mineral  surveyors,  and  will,  on  sufficient  cause  shown, 
suspend  or  revoke  their  appointment. 

121.  The   surveyors-general   should  appoint   as  many   compe- 
tent deputy  mineral  surveyors  as  apply  for  appointment,  in 
order   that  claimants  may  have  a  choice  of  surveyors,   and 
be  enabled  to  have  their  work  done  on  the  most  advantage- 
ous terms. 

122.  The   schedule  of   charges   for  office  work  should  be  as 
low  as  is  possible.      No  additional   charges  should  be  made 
for  orders  for  amended  surveys,  unless  the  necessity  there- 
for is  clearly  the  fault  of  the  claimant,  or  considerable  ad- 
ditional   office   work   results   therefrom. 

123.  In  cases  where  the  error  in  the  original  survey  is  due 
to  the  carelessness  or  neglect  of  the  surveyor  who  made  it, 

*  Since  1895,  and  until  the  present  Revision,  the  fol- 
lowing Rules  were  contained  in  the  "Manual  of  Instruc- 
tions." 


370  LAND  OFFICE  RULES. 

he  should  be  required  to  make  the  necessary  corrections  in 
the  field  at  his  own  expense,  and  the  surveyor-general  should 
advise  him  that  the  penalty  for  failure  to  comply  with  in- 
structions within  a  specified  time  will  be  the  suspension  or 
revocation  of  his  commission. 

124.  Mineral   surveyors  will  address  all  official  communica- 
tions  to   the  surveyor-general.       They  will,   when   a   mining 
claim  is  the  subject  of   correspondence,   give  the   name  and 
survey  number.      In   replying  to   letters   they   will   give  the 
subject-matter  and  date  of  the   letter.     They  will   promptly 
notify  the  surveyor-general   of  any  change  in  post-office  ad- 
dress. 

125.  Mineral    surveyors    should   keep    a   complete   record   of 
each   survey   made  by  them   and   the   facts  coming  to   their 
knowledge  at  the  time,  as  well   as   copies  of   all   their   field 
notes,    reports,    and    official    correspondence,    in    order    that 
such  evidence  may   be  readily  produced  when   called  for   at 
any   future   time.       Field  notes   and   other   reports   must   be 
written  in  a  clear  and  legible  hand  or  typewritten,  in  non- 
copying  ink,'  and   upon   the   proper   blanks   furnished  gratu- 
itously   by    the    surveyor-general's     office    upon    application 
therefor.      No  interlineations  or  erasures  will  be  allowed. 

126.  No  return  by  a  mineral  surveyor  will  "be  recognized  as 
official  unless  it  is  over  his  signature  as  a  United  States  dep- 
uty mineral   surveyor,   and  made  in  pursuance   of  a  special 
order   from   the   surveyor-general's   office.      After  he  has   re- 
ceived an  order  for  survey  he  is  required  to  make  the  sur- 
vey and  return  correct  field  notes  thereof  to  the  surveyor- 
general's  office  without  delay. 

127.  Claimant    Contract   With   Deputy.— The     claimant     is 
required.,    in    all    cases,    to    make    satisfactory    arrangements 
with  the  surveyor  for  the  payment  for  his  services  and  those 
of  his  assistants  in  making  the  survey,  as  the  Untied  States 
will  not  be  held  responsible  for  the  same. 

128.  Deputy  Not  Act  as  Attorney. — A  mineral  surveyor  is 
precluded  from   acting,   either   directly   or  indirectly,   as   at- 
torney in  mineral  claims.      His  duty  in  any  particular  case 
ceases  when   he  has  executed   the   survey  and  returned   the 
field  notes  and  preliminary  plat,  with  his  report,  to  the  sur- 
veyor-general.      He  will  not  be  allowed   to  prepare  for  the 
mining  claimant  the  papers  in  support  of  his  application  for 
patent,   or  otherwise  perform   the  duties   of  an  attorney  be- 
fore the  land  office  in  connection  with  a  mining  claim/    He 
is    not    permitted    to    combine    the    duties    of    surveyor    and 
notary   public   in   the  same   case   by   administering   oaths  to 
the  parties  in  interest,   but  as  a  notary  public  he  may  ad- 
minister the  oaths  to  his  assistants  in  making  the  survey  ; 
otherwise  he   must  have  absolutely  nothing  to  do  with   the 
case,   except   in   his   official   capacity   as  surveyor.       He   will 
make  no  survey   of  a  mineral   claim   in   which  he  holds   an 
interest,  nor  will  he  employ  chainmen  interested  therein  in 
any  manner. 


LAND  OFFICE  RULES.  371 

SURVEY HOW    MADE. 

129.  Survey  Must  Be   Actual, — The  survey  made  and  re- 
turned   must,    in    every    case,    be    an    actual    survey    on    the 
ground  in  full  detail,  made  by  the  mineral  surveyor  in  per- 
son after   the   receipt  of   the   order,   and   without   reference 
to  any  knowledge  he  may  have  previously  acquired   by  rea- 
son  of  having  made  the   location  survey   or   otherwise,   and 
mus.t  show  the  actual  facts  existing  at  the  time.      This  pre- 
cludes  him  from   calculating   the   connections   to   corners   of 
the   public    survey    and    location    monuments,    or   any    other 
lines   of  his   survey   through   prior   surveys   made   by   others 
and   substituting  the  same  for   connections  or   lines   of   the 
survey   returned   by   him.       The    term   survey   in  this   para- 
graph  applies    not    only   to    the   usual   field   work,    but   also 
to   the    examinations    required   for    the    preparation    of    affi- 
davits  of   five   hundred   dollars   expenditure,    descriptive   re- 
ports on  placer  claims,  and  all  other  reports. 

130.  The  survey  of  a  mining  claim  may  consist  of  several 
contiguous   locations,   but  such  survey   must,   in   conformity 
with    statutory    requirements,   distinguish   the  several   loca- 
tions, and  exhibit  the  boundaries  of  each.     The  survey  will 
be  given  but  one  number. 

131.  The  survey  must  be  made  in  strict  conformity  with,  or 
be  embraced  within,  the  lines  of  the  location  upon  which  the 
order   is   based.       If   the  survey   and   location   are   identical, 
that  fact  must  be  clearly  and  distinctly  stated  in  the  field 
notes.       If   not   identical,    a   bearing   and   distance   must   be 
given   from    each   established   corner   of   survey    to    the   cor- 
responding corner   of  the  location,   and   the   location   corner 
must  be  fully  described,   so  that  it  can  be  identified.      The 
lines  of  the  location,  as  found  upon  the  ground,  must  be  laid 
down   upon   the   preliminary   plat   in   such    a   manner   as   to 
contrast  and  show  their  relation  to  the  lines  of  the  survey. 

132.  Corners  Not  to  Be  Changed. — In  view   of  the  princi- 
ple   that    courses    and    distances    must    give    way    when    in 
conflict    with    fixed    objects    and    monuments,    the    surveyor 
will    not,   under   any   circumstances,   change   the    corners    of 
the   location    for   the   purpose   of   making   them   conform   to 
the  description  in  the   record.       If   the   difference  from   the 
location  be  slight,  it  may  be  explained  in  the  field  notes. 

133.  Not  Exceed  Statutory  Length  and  Width, — No  mining 
claim  located  subsequent  to  May  10,  1872,  should  exceed  the 
statutory  limit  in  width  on  each  side  of  the  center  of  vein 
or  1,500  feet  in  length,   and  all  surveys  must  close  within 
50-100  feet  in  1,000  feet,  and  the  error  must  not  be  such 
as  to  make  the  location  exceed  the  statutory  limit,  and  in 
absence   of   other   proof   the   discovery   point   is   held   to   be 
the  center  of  the  vein  on  the  surface.     The  course  and  length 
of  the  vein  should  be  marked  upon  the  plat. 

134.  Instrument— True     Meridian.— All     mineral     surveys 
must  be  made  with  a  transit,  provided  with  a  solar  attach- 


372  LAND  OFFICE  RULES. 

raent,  by  which  the  meridian  can  be  determined  independ- 
ently of  the  magnetic  needle,  and  all  courses  must  be  re- 
ferred to  the  true  meridian.  The  variation  should  be  noted 
at  each  corner  of  the  survey.  The  true  course  of  at  least 
one  line  of  each  survey  must  be  ascertained  by  astronom- 
ical observations  made  at  the  time  of  the  survey  ;  the  data 
for  determining  the  same  and  details  as  to  how  these  data 
were  arrived  at  must  be  given.  Or,  in  lieu  of  the  foregoing 
the  survey  must  be  connected  with  some  line  the  true  course 
of  which  has  been  previously  established  beyond  question, 
and  in  a  similar  manner,  and,  when  such  lines  exist,  it  is 
desirable  in  all  cases  that,  they  should  be  used  as  a  proof 
of  the  accuracy  of  subsequent  work. 

135.  Ties  to  Public  Survey, — Corner  No.   1  of  each  loca- 
tion embraced  in  a  survey  'must  be  connected  by  course  and 
distance     with    nearest     corner    of    the    public     survey     or 
with  a  United  States   location   monument,   if  the  claim  lies 
within  two  miles  of  such  corner  or  monument.     If  both  are 
within   the   required   distance   the   connection   must   be   with 
the  corner  of  the  public  survey. 

136.  Mineral    Monuments    in    Suspended    Townships. — Sur- 
veys   and   connections    of   mineral    claims    may    be   made   in 
suspended    townships    in    the   same    manner    as    though    the 
claims    were    upon    unsurveyed    land,    except    as    hereinafter 
specified,    by    connecting    them    with    independent    mineral 
monuments.      At  the  same  time,  the  position  of  any  public- 
land   corner   which    may    be   found   in   the   neighborhood    of 
the  claim  should  be  noted,  so  that,  in  case  of  the  release  of 
the  township  from  suspension,  the  position  of  the  claim  can 
be  shown  on  the  plat. 

137.  No  Choice   of  Tie. — A  mineral  survey  must  not  be 
returned  with  its  connection  made  only  with  a  corner  of  the 
public    survey,    where    the    survey    of    the    township    within 
which  it  is  situated  is  under  suspension,  nor  connected  with 
a  mineral  monument  alone,  when  situated  within  the  limits 
of  a  township  the  regularity  and  correctness  of  the  survey 
of  which  is  unquestioned. 

138.  Corner  No,   1 — Section  Lines. — In    making  an   official 
survey,   corner   No.    1   of   each   location   must  be   established 
at   the   corner   nearest   the   corner   of  the   public   survey    or 
location  monument,   unless  good  cause  is  shown  for  its  be- 
ing placed  otherwise.       If  connections   are   given  to   both  a 
corner  of  the  public  survey  and  location  monument,  corners 
Nos.  1  should  be  placed  at  the  corner  nearest  the  corner  of 
the  public  survey.      When  a  boundary  line  of  a  claim  inter- 
sects a  section  line  courses  and  distances  from  point  of  in- 
tersection  to   the    Government   corners   at   each   end   of   the 
half  mile  of  section  line  so  intersected  must  be  given. 

139.  Erection  of  Mineral  Monuments. — In  case  a  survey  is 
situated   in   a   district   where   there   are   no   corners   of   the 
public    survey    and    no    monuments    within     the     prescribed 
limits,   a  mineral  monument  must  be  established,  in  the  lo- 


LAND  OFFICE  RULES.  373 

cation  of  which  the  greatest  care  must  be  exercised  to   in- 
sure permanency  as  to  site  and  construction. 

140.  The  site,   when  practicable,   should  be  some  prominent 
point,  visible  for  a  long  distance  from  every  direction,  and 
should  be  so  chosen  that  the  permanency  Of  the  monument 
will  not  be  endangered  by  snow,  rock,  or  landslides,  or  other 
natural   causes. 

141.  Dimensions    and     Marking. — The    monument    should 
consist  of  a  stone  not  less   than  30  inches  long,  20  inches 
wide,   and  6  inches  thick,   set  halfway  in  the  ground,  with 
a  conical  mound  of  stone  4  feet  high  and  6  feet  base  along- 
side.    The  letters  U.   S.  L.   M.,  followed  by  the  consecutive 
number  of  the  monument  in  the  district,  must  be  plainly  chis- 
eled upon  the  stone.      If  impracticable  to  obtain  a  stone  of 
required  dimensions,  then  a  post  8  feet  long,  6  inches  square, 
set    3    feet    in    the    ground,    scribed    as    for    a    stone    monu- 
ment,  protected   by   a  well-built   conical   mound  of  stone   of 
not  less  than  3  feet  high  and  6  feet  base  around  it,   may 
be    used.       The   exact    point    for    connection    must    be    indi- 
cated on  the  monument  by  an  x  chiseled  thereon  ;  if  a  post 
is  used,  then  a  tack  must  be  driven  into  the  post  to  indicate 
the  point. 

142.  Ties    to    Mineral    Monument. — From    the    monument, 
connections   by   course   and   distance  must   be   taken  to   two 
or  three  bearing  trees  or  rocks,  and  to  any  well-known  and 
permanent   objects   in    the   vicinity,    such   as   the   confluence 
of  streams,  prominent  rocks,  buildings,  shafts,  or  mouths  of 
adits.       Bearing   trees   must   be   properly  scribed  B.   T.    and 
bearing  rocks   chiseled  B.   R.,   together  with   the  number   of 
the  location  monument ;  the  exact  point  on  the  tree  or  stone 
to  which  the  connection   is  taken  should  be  indicated  by  a 
cross   or    other   unmistakable   mark.       Bearings    should    also 
be  taken  to  prominent  mountain  peaks,  and  the  approximate 
distance   and   direction    ascertained   from    the   nearest    town 
or    mining    camp.       A    detailed    description    of    the    locating 
monument,  with  a  topographical  map  of  its  location,  should 
be  furnished  the  office   of  the  surveyor-general   by  the  sur- 
veyor. 

143.  Corners  may  consist  of — 

First. — A  stone  at  least  24  inches  long  set  12  inches  in 
the  ground,  with  a  conical  mound  of  stone  1%  feet  high,  2 
feet  base,  alongside. 

Second. — A  post  at  least  3  feet  long  by  4  inches  square, 
set  18  inches  in  the  ground  and  surrounded  by  a  substantial 
mound  of  stone  or  earth.  , 

Third. — A  rock  in  place. 

A  stone  should  always  be  used  for  a  corner  when  pos- 
sible, and  when  so  used  the  kind  should  be  stated. 

144.  Marking   Corners. — All   corners  must  be  established 
in   a  permanent   and   workmanlike   manner,    and   the   corner 
and  survey  number   must  be   neatly   chiseled  or  scribed  on 
the  sides  facing  the  claim.     The  exact  corner  point  must  be 


374  LAND  OFFICE  RULES. 

permanently  indicated  on  the  corner.  When  a  rock  in  place 
is  used  its  dimensions  above  ground  must  be  stated  and  a 
cross  chiseled  at  the  exact  corner  point. 

145.  In  case  the  point  for  the  corner  be  inaccessible  or  un- 
suitable a  witness  corner,  which  must   be  marked  with   the 
letters  W.  C.  in  addition  to  the  corner  and  survey  number, 
should  be  established.      The  witness  corner  should  be  located 
upon  a   line  of  the  survey   and  as  near  as  possible   to  the 
true  corner,  with  which  it  must  be  connected  by  course  and 
distance.     The  reason  why  it  is  impossible  or  impracticable 
to  establish  the  true  corner   must  always   be  stated  in   the 
field    notes,    and    in   running   the   next    course   it   should    be 
stated   whether   the  start  is  made  from   the  true  place  for 
corner  or  from  witness  corner. 

146.  The  identity  of  all   corners   should  be   perpetuated  by 
taking   courses    and   distances   to   bearing   trees,    rocks,    and 
other  objects,  as  prescribed  in  the  establishment  of  location 
monuments,   and  when   no   bearings  are   given   it  should   be 
stated   that  no   bearings   are   available.      Permanent   objects 
should  be  selected  for  bearings  whenever  possible. 

147.  Tying  to   Official  Survey — If  an   official   survey   has 
been    made    within    a    reasonable    distance    in    the    vicinity, 
there   should   be   a   connecting   line   run   to   some    corner    of 
the   same,   and    in   like   manner   all   conflicting   surveys   and 
claims  should  be  so  connected,   and  the  corner  with  which 
the   connection   is   made   described..      In   survey   of   contigu- 
ous locations  which  are  part  of  a  consolidated  claim,  where 
corners  are  common,  bearings  should  be  mentioned  but  once. 

148.  Topography. — The    mineral    surveyor    should    note 
carefully  all  topographical  features  of  the  claim,  taking  dis- 
tances on  his  lines  to  intersections  with  all  streams,  gulches, 
ditches,    ravines,   mountain   ridges,   roads,    trails,    etc.,   with 
their  widths,  courses,  and  other  data  that  may  be  required  to 
map  them  correctly.      All  municipal  or  private  improvements, 
such  as  blocks,  streets,  and  buildings,  should  be  located. 

149.  Conflict  With  Other  Surveys. — If,  in  running  the  ex- 
terior lines  of  a  claim,  the  survey  is  found  to  conflict  with 
the  survey  of  another  claim,  the  distances  to  the  points  of 
intersection;   and   the   courses   and   distances   along   the   line 
intersected   from   an   established   corner    of   such    conflicting 
claim  to  such  points  of  intersection,  should  be  described  in 
the  field  notes  :    Provided,  That  where  a  corner  of  the  con- 
flicting survey  falls  within  the   claim   being  surveyed,   such 
corner  should  be  selected   from  which   to  give   the  bearing, 
otherwise   the  corner    nearest    the    intersection    should    be 
taken.      The  same  rule  should  govern  in  the  survey  of  claims 
embracing  two  or  more  locations   the  lines  of  which  inter- 
sect. 

150.  A  lode  and  mill-site  claim  in  one  survey  will  be  dis- 
tinguished by  the  letters  A  and  B  following  the  number  of 
the  survey.      The  corners  of  the  mill  site  will  be  numbered 
independently   of   those    of   the   lode.      Corner   No,    1    of  the 


LAND  OFFICE  RULES.  375 

mill  site  must  be  connected  with  a  corner  of  the  lode  claim 
as  well  as  with  a  corner  of  the  public  survey  or  United 
States  location  monument. 

151.  When  a  placer  claim   includes  lodes,    or  when   several 
contiguous    placer    or    lode    locations    are    included     as     one 
claim  in  one  survey,  there  must  be  given  to  the  corners  of 
each   location   constituting  the   same  a  separate  consecutive 
numerical  designation,  beginning  with  corner  No.   1  in  each 
case. 

152.  Conflicting  Surveys  Named, — Throughout  the  descrip- 
tion of  the  survey,  after  each  reference  to  the  lines  or  corners 
of  a  location,  the  name  thereof  must  be  given,  and  if  unsur- 
veyed,  the  fact  stated.       If  reference  is  made  to  a  location 
included  in  a  prior  official  survey,  the  survey  number  must 
be   given,   followed    by   the   name   of   the   location.      Corners 
should  be  described  once  only. 

153.  The  total  area  of  each  location   and  also   the  area  in 
conflict   with   each    intersecting    survey    or    claim    should   be 
stated ;    also   the  total   area   claimed.       But   when   locations 
embraced  in  one  survey  conflict  with   each   other   such   con- 
flicts should  only  be  stated  in  connection  with  the  location 
from  which  the  conflicting  area  is  excluded. 

154.  Section,  Township  and  Range  to  Be  Shown. — It  should 
be  stated   particularly   whether   the  claim   is   upon  surveyed 
or  unsurveyed  public  lands,   giving  in   the  former   case  the 
quarter  section,  township,  and  range  in  which  it  is  located, 
and  the  section  lines  should  be  indicated   by  full  lines  and 
the  quarter-section  lines  by  dotted  lines. 

155.  The  title-page  of  the  field  notes  must  contain  the  post- 
office  address  of  the  claimant  or  his  authorized  agent. 

156.  In  the  mineral  surveyor's  certificate  of  the  value  of  the 
improvements   all   actual   expenditures   and   mining  improve- 
ments made  by  the  claimant  or  his  grantors,  having  a  direct 
relation  to  the  development  of  the  claim,  must  be  included 
in  the  estimate. 

157.  What  Improvements  Excluded, — The  expenditures  re- 
quired may  be  made  from  the  surface  or  in  running  a  tun- 
nel,  drifts,   or   crosscuts  for  the  development   of   the   claim. 
Improvements  of  any  other  character,  such  as  buildings,  ma- 
chinery, or  roadways,  must  be  excluded  from   the  estimate, 
unless  it  is  shown  clearly  that  they  are  associated  with  act- 
ual excavations,  such  as  cuts,  tunnels,  shafts,  etc.,  are  essen- 
tial   to    the   practical    development    of,    and    actually    facili- 
tate the  extraction  of  mineral  from,  the  claim. 

158.  Ties  —  Abandoned   Improvements.  —  All    mining   and 
other  improvements  claimed  will  be  located  by  courses  and 
distances  from  corners  of  the  survey,  or  from  points  on  the 
center  or  side  lines,  specifying  with  particularity  and  detail 
the  dimensions  and  character  of  each,  and  the  improvements 
upon    each    location   should   be   numbered    consecutively,    the 
point  of  discovery  being  always  No.  1.      Improvements  made 


376  LAND  OFFICE  RULES. 

upon  other  locations,  or  by  a  former  locator  who  has  aban- 
doned the  claim,  can  not  be  included  in  the  estimate,  but 
should  be  described  and  located  in  the  notes  and  plat. 

159.  In  case  of  a  lode  and  mill-site  claim  in  the  same  sur- 
vey the  expenditure  of  five  hundred  dollars  must   be  shown 
upon  the  lode  claim. 

160.  Expenditure  During  Publication, — If  the  value  of  the 
labor  and  improvements  upon  a  mineral   claim  is  less  than 
five  hundred  dollars  at  the  time  of  survey,  the  mineral  sur- 
veyor may  file  with  the  surveyor-general  supplemental  proof 
showing  five  hundred  dollars  expenditure  made  prior  to  the 
expiration  of  the  period  of  publication. 

161.  Preliminary    Plat. — The    mineral    surveyor    will    re- 
turn with  his  field  notes  a  preliminary  plat  on  blank  sent 
to  him  for  that  purpose,  protracted  on  a  scale  of  two  hun^ 
dred  feet  to  an  inch,  if  practicable.     In  preparing  plats  the 
top  is  north.      Copy  of  the  calculations  of  areas  by  double 
meridian  distances  and  of  all  triangulations  or  traverse  lines 
must  be  furnished.      The  lines  of  the  claim  surveyed  should 
be  heavier  than  the  lines  of  conflicting  claims. 

162.  Errors — Joint  Survey. — Whenever  a  survey  has  been 
reported  in  error  the  surveyor  who  made  it  will  be  required 
to  promptly  make  a  thorough  examination  upon  the  premises 
and  report  the  result,  under  oath,  to  the  surveyor-general's 
office.      In  case  he  finds  his  survey  in  error  he  will  report 
in  detail  all  discrepancies  with  the  original  survey  and  sub- 
mit any  explanation  he  may  have  to  offer  as  to  the  cause. 
If,   on  the  contrary,   he  should  report  his  survey  correct,  a 
joint  survey  will  be  ordered  to  settle  the  differences  with  the 
surveyor  who  reported  the  error.      A  joint  survey   must  be 
made  within  ten  days  after  the  date  of  order  unless  satis- 
factory reasons  are  submitted,    under  oath,  for  a  postpone- 
ment.      The   field    work   must    in    every   sense   of    the   term 
be  a  joint  and  not  a  separate  survey,  and  the  observations 
and  measurements  taken  with  the  same  instrument  and  chain, 
previously  tested  and  agreed  upon. 

163.  The  surveyor  found  in  error,   or,  if  both  are  in  error, 
the  one  who  reported  the  same,  will  make  out  the  field  notes 
of  the  joint  survey,  which,  after  being  duly  signed  and  sworn 
to   by   both   parties,    must   be   transmitted   to   the   surveyor- 
general's  office. 

164.  Inasmuch    as    amended    surveys    are    ordered    only    by 
special  instructions  from   the  General   Land   Office,   and  the 
conditions  and  circumstances  peculiar  to  each  separate  case, 
and    the   object    sought    by   the   required    amendment,    alone 
govern  all  special  matters  relative  to  the  manner  of  making 
such  survey  and  the  form  and  subject-matter  to  be  embraced 
in  the  field  notes  thereof,  but  few  general  rules  applicable  to 
all  cases  can  be  laid  down. 

165.  The  amended  survey  must  be  made  in  strict  conform- 
ity with,   or  be  embraced   within,   the  lines   of  the   original 
survey.      If  the  amended  and  original  surveys  are  identical. 


LAND  OFFICE  RULES.  377 

that  fact  must  be  clearly  and  distinctly  stated  in  the  field 
notes.  If  not  identical,  a  bearing  and  distance  must  be 
given  from  each  established  corner  of  the  amended  survey 
to  the  corresponding  corner  of  the  original  survey.  The 
lines  of  the  original  survey,  as  found  upon  the  ground,  must 
be  laid  down  upon  the  preliminary  plat  in  such  manner  as 
to  contrast  and  show  their  relation  to  the  lines  of  the 
amended  survey. 

166.  The   field  notes  of  the   amended   survey  must  be  pre- 
pared on  the  same  size  and  form  of  blanks  as  are  the  field 
notes  of  the  original  survey,  and  the  word  "amended"  must 
be  used  before  the  word  "survey"  wherever  it  occurs  in  the 
field  notes. 

167.  Descriptive    Report    on    Placers, — Mineral    surveyors 
are  required  to  make  full  examinations  of  all  placer  claims 
at  the  time  of  survey  and  file  with  the  field  notes  a  descrip- 
tive report,  in  which  will  be  described — 

(a)  The  quality  and  composition  of  the  soil,  and  the 
kind  and  amount  of  timber  and  other  vegetation. 

(&)  The  locus  and  size  of  streams,  and  such  other 
matter  as  may  appear  upon  the  surface  of  the  claims. 

(c)  The  character  and  extent  of  all  surface  and  under- 
ground workings,   whether   placer   or   lode,   for   mining   pur- 
poses, locating  and  describing  them. 

(d)  The  proximity  of  centers  of  trade  or  residence. 

(e)  The  proximity  of  well-known  systems  of  lode  de- 
posits or  of  individual  lodes. 

(f)  The    use    or    adaptability  of  the  claim  for  placer 
mining,    and   whether   water    has    been    brought    upon   it    in 
sufficient  quantity  to  mine  the  same,   or  whether  it  can  be 
procured  for  that   purpose. 

(g)  What  works  or  expenditures  have  been  made  by 
the   claimant   or   his   grantors   for   the   development   of   the 
claim,    and    their    situation    and    location    with    respect    to 
the  same  as  applied  for. 

(h)  The  true  situation  of  all  mines,  salt  licks,  salt 
springs,  and  mill  sites  which  come  to  the  surveyor's  knowl- 
edge, or  a  report  by  him  that  none  exist  on  the  claim,  as  the 
facts  may  warrant. 

(i)  Said  report  must  be  made  under  oath  and  duly 
corroborated  by  one  or  more  disinterested  persons. 

168.  The   employing   of   claimants,    their   attorneys,    or   par- 
ties in  interest,  as  assistants  in  making  surveys  of  mineral 
claims,  will  not  be  allowed. 

169.  Accuracy  Required — Threat  of  Revocation. — The    field 
work  must  be  accurately  and  properly  performed  and  returns 
made  in  conformity  with  the  foregoing  instructions.     Errors 
in  the  survey  must  be  corrected  at  the  surveyor's  own  ex- 
pense,  and  if  the  time  required  in  the  examination  of  the 
returns    is   increased   by   reason    of   neglect    or   carelessness, 
he  will  be  required  to  make  an  additional  deposit  for  office 
work.      He  will   be  held   to  a  strict   accountability   for  the 


378  CIRCULAR    TO    APPLICANTS 

faithful  discharge  of  his  duties,  and  will  be  required  to 
observe  fully  the  requirements  and  regulations  in  force  as 
to  making  mineral  surveys.  If  found  incompetent  as  a  sur- 
veyor, careless  in  the  discharge  of  his  duties,  or  guilty  of  a 
violation  of  said  regulations,  his  appointment  will  be 
promptly  revoked. 

BINGER  HERMANN, 

Commissioner. 
Approved. 

E.  A.  HITCHCOCK,  Secretary. 


*CIRCULAR  TO  APPLICANTS. 


To  Applicants  for  Mineral  Survey  Orders: 

You  will  observe  the  following  requirements  in  the  con- 
duct of  your  business  with  the  Surveyor  General's  Office, 
the  same  being  based  upon  the  United  States  mining  laws 
and  circular  and  special  instructions  from  the  Commissioner 
of  the  General  Land  Office  : 

1.  All   applications  for  survey  orders,   descriptive   re- 
ports on  placer  claims,  or  certificates  of  five  hundred  dollars 
expenditure,    should  be  addressed  to  the   Surveyor    General 
and  be  signed  by  the  claimants,  their  agent  or  attorney. 

2.  Each  application  should  contain  : 

(a)  The  name  of  the  claimant  in  full,  and  as  it  is 
desired  to  appear  in  the  application  for  patent. 

(6)     The  name  of  each  location  embraced  in  the  claim. 

(c)  The   name   of   the   land   and   mining   districts   in 
which  the  claim  is  located. 

(d)  The  name  of  the  United   States  deputy  mineral 
surveyor  to  whom  it  is  desired  the  order  shall  be  issued. 

3.  You  are  required  to  file  with  each  application  for 
survey  order,  a  copy  of  the  record  of  location  of  the  claim, 
properly  certified  by   the  recorder  of  the  county   or  mining 
district  where  the  claim  is  situate. 

4.  The  deputy  mineral   surveyor  is  required  to  sur- 
vey the  claim  in  strict  conformity  with  or  within  the  lines 
of   the   location   upon   which   the   order   of   survey   is   based. 
You    are,    therefore,    advised    before    filing    your   application 
to  see  that  your  location  has  been  made  in  compliance  with 
the  law  and  regulations,  and  that  it  properly  describes  the 
claim  for  which  the  patent  is  sought. 

The  act  of  Congress  of  May  10,  1872,  expressly  provides 
that  "the  location  must  be  distinctly  marked  on  the  ground, 
so  that  its  boundaries  can  be  readily  traced,"  and  "that  all 

*NOTE. — This  circular  was  part  of  the  Manual  of  In- 
structions issued  in  1895,  and  is  unaffected  by  the  Revision 
of  Land  Office  Regulations,  of  July  26,  1901,  Ante,  p.  31,1,. 


CIRCULAR    TO    APPLICANTS  379 

records  of  mining  claims  hereafter  made  shall  contain  the 
name  or  names  of  the  locators,  the  date  of  location,  and 
such  a  description  of  the  claim  or  claims,  located  by  refer- 
ence to  some  natural  object  or  permanent  monument,  as  will 
identify  the  claim." 

"These  provisions  of  the  law  must  be  strictly  complied 
with  in  each  case  to  entitle  a  claimant  to  a  survey  and 
patent,  and  therefore  should  a  claimant  under  a  location 
made  subsequent  to  the  passage  of  the  mining  act  of  May 
10,  1872,  who  has  not  complied  with  said  requirements  in 
regard  to  marking  the  location  upon  the  ground,  and  record- 
ing the  same,  apply  for  a  survey,  you  will  decline  to  make  it." 

"The  only  relief  for  a  party  under  such  circumstances, 
will  be  to  make  a  new  location  in  conformity  to  law  and  reg- 
ulations, as  no  case  will  be  approved  by  this  office,  unless 
these  and  all  other  provisions  of  law  are  substantially  com- 
plied with."  (See  General  Land  Office  circular  dated  No- 
vember 20,  1873.)  [Sickel  562.] 

5.  Par.  99   (now  91),  General  Land  Office  circular,  of 
December  10,  1891,  edition  December  1,  1894,  relating  to  the 
expense  of  office  work  connected  with  the  survey  of  mineral 
claims,  reads  as  follows  : 

"With  regard  to  the  platting  of  the  claim  and  other 
office  work  in  the  Surveyor  General's  office,  that  officer  will 
make  an  estimate  of  the  cost  thereof,  which  amount  the 
claimant  will  deposit  with  any  assistant  United  States 
treasurer,  or  designated  depository,  in  favor  of  the  United 
States  treasurer,  to  be  passed  to  the  credit  of  the  fund  cre- 
ated by  'individual  depositors  for  surveys  of  the  public 
lands,'  and  file  with  the  Surveyor  General  duplicate  cer- 
tificates of  such  deposits  in  the  usual  manner." 

6.  The    various    Surveyors     General     have     adopted 
schedules  of  rates  for  office  work,  and  an  estimate  of  the  cost 
in  any  particular  case  may  be  had  upon  application. 

Should  an  applicant  deem  an  estimate  excessive,  he 
will  be  allowed  the  right  of  appeal  to  the  General  Land 
Office  in  the  usual  manner. 

In  transmitting  such  an  appeal  the  Surveyor  General 
should  transmit  therewith  a  full  report. 

7.  Should    the   office    work    in    any    case    amount    to 
more  than  the  estimate,  or   if  an  amended   order  is  issued, 
an  additional  deposit  will  be  required. 

8.  In  districts  where  there  are  no  United  States  de- 
positories,   you    should    deposit    with    the    nearest    assistant 
United  States  treasurer,  or  depository,  and  in  all  cases  im- 
mediately  forward   the  original   certificate  to  the   Secretary 
of  the  Treasury  and  the  duplicate  to  the  Surveyor  General's 
Office,  retaining  the  triplicate  for  your  own  use  and  secur- 
ity.     Under  no  circumstances  will   the   deposit  be  made  by 
the  Surveyor  General.       (See  paragraph  5,  preceding.) 

9.  An  application  for  an  amended  survey  order  must 
be   accompanied   with    a    statement   setting   forth   fully    the 
reasons   for   the   proposed   amendment   and   all   the   material 
facts  in  the  matter. 


380  CIRCULAR    TO    APPLICANTS 

10.  If,    after    having    obtained    a   survey    order,    you 
should  abandon  your  purpose  of  having  a  survey  made,  you 
can  apply  the  deposit,  less   the  amount  estimated  for  office 
expenses  already  incurred,  on  a  new  survey  if  one  is  desired. 

11.  Upon  discovery  of  any  error  or  defect  in  an  or- 
der you  are  requested  to  return  it  to  the  Surveyor  General's 
Office  for  correction  or  amendment. 

12.  If,    after   having   obtained   an    order   for   survey, 
you  should  find  that  the  record  of  location  does  not  prac- 
tically   describe    the    location    as    staked    upon    the    ground, 
you  should  file  a  certified  copy  of  an  amended  location  cer- 
tificate,    correctly     describing     the     claim,     and     obtain     an 
amended  order  for  survey.      If  a  relocation  of  the  claim  is 
made    embracing    ground    not    included    in    the    original    or- 
der, or  other  material  change  is  made,  you  will  abandon  the 
original   number  of  the  order  for  survey,   and  a  new   order 
will  be  issued  in  which  a  number  in  the  current  series  will 
be  substituted. 

13.  The   order    of   approval    of     surveys    of    mineral 
claims   is  prescribed  by  General   Land  Office   circular  dated 
March  3,   1881,  as  follows  : 

"The  mining  survey  first  applied  for  shall  have  the 
priority  of  action  in  all  its  stages  in  the  office  of  the  Sur- 
veyor General,  including  the  delivery  thereof,  over  any  other 
survey  of  the  same  ground  or  any  portion  thereof. 

"The  Surveyor  General  should  not  order  or  author- 
ize a  survey  of}  a  claim  which  conflicts  with  one  previously 
applied  for  until  the  survey  first  applied  for  has  been  com- 
pleted, examined,  approved  and  platted,  and  the  plats  de- 
livered. 

"When  the  conflict  does  not  appear  until  the  field  notes 
of  the  respective  surveys  are  returned,  then  the  survey 
first  applied  for  should  be  first  examined,  approved,  and  plat- 
ted, and  the  plats  delivered  before  the  field  notes  of  the 
survey  last  applied  for  are  taken  up  for  examination  or  plats 
constructed. 

"When  the  survey  first  authorized  is  not  returned 
within  a  reasonable  period,  and  the  applicant  for  a  conflict- 
Ing  survey  makes  affidavit  that  he  believes  (stating  the  rea- 
sons for  his  belief)  that  such  first  applicant  has  abandoned 
his  purpose  of  having  a  survey  made,  or  is  deferring  it  for 
vexatious  purposes,  to  wit,  to  postpone  the  subsequent  ap- 
plicant, the  Surveyor  General  shall  give  notice  of  such 
charges  to  such  first  applicant,  and  call  upon  him  for  an 
explanation  under  oath  of  the  delay.  He  shall  also  re- 
quire the  deputy  mineral  surveyor  to  make  a  full  state- 
ment in  writing,  explanatory  of  the  delay  ;  and  if  the  Sur- 
veyor General  shall  conclude  that  good  and  sufficient  rea- 
sons for  such  delay  do  not  exist,  he  shall  authorize  the 
applicant  for  the  conflicting  survey  to  proceed  with  the 
same ;  otherwise  the  order  of  proceedings  shall  not  be 
changed. 

"Whenever  an  applicant  for  a  survey  shall  have  rea- 
son to  suppose  that  a  conflicting  claimant  will  also  apply 


SURVEYOR   GENERAL'S  CIRCULAR.  381 

for  a  survey  for  patent,  he  may  give  a  notice  in  writing 
to  the  Surveyor  General  particularly  describing  such  con- 
flicting claim,  and  file  a  copy  of  the  notice  of  location  of 
such  conflicting  claim.  In  such  case  the  Surveyor  General 
will  not  order  or  authorize  any  survey  of  such  conflicting 
claim  until  the  survey  first  applied  for  has  been  examined, 
completed,  approved  and  platted,  and  the  plats  delivered." 

14.  You   have  the   option   of    employing    any    United 
States   deputy   mineral    surveyor   in   the   district   to   execute 
the   order   of  survey,   and   must   make  satisfactory   arrange- 
ments with  such  surveyor  for   the  payment  of  his  services 
and   those   of   his   assistants   in   making  the   survey,   as   the 
United  States  will  not  be  held  responsible  for  the  payment 
of  the  same.      The  duty  of  the  deputy  surveyor  in  any  par- 
ticular case   ceases   when   he  has   executed   the   survey    and 
returned  the  same  to  this  office.      He  is  not  allowed  to  pre- 
pare for  the  mining  claimant  the  papers  in  support  of  an 
application   for  patent,   being   precluded   from   acting  either 
directly  or  indirectly  as  attorney  in  mineral   claims.      (Sec. 
2334.) 

15.  You  are  advised  of  your   right  to   appeal   to  the 
Commissioner  of  the  General  Land  Office  from  the  approval 
or   disapproval   of  the   survey   of  your   claim.       The   appeal 
must  be  in  writing  or  in  print,  should  set  forth  in  brief  and 
clear   terms   the   specific   points   of   exception   to   the   ruling 
appealed  from  and  should  be  transmitted  through   the  Sur- 
veyor General's  Office. 


SURVEYOR  GENERAL'S  CIRCULAR. 


The  following  circular  relating  to  expense  of 
office  work  in  the  Surveyor  General's  Office  in  Colo- 
rado, dated  June  21,  1902,  is  now  in  force. 

In  accordance  with  paragraph  91,  General  Land  Office 
Circular  of  the  United  States  Mining  Laws,  approved  July 
26,  1901,  relating  to  the  expense  of  office  work  connected 
with  the  survey  of  mineral  claims,  which  authorizes  the 
Surveyor  General  in  each  district  to  require  a  deposit  for 
platting  and  other  office  work  for  mineral  surveys ;  it  is 
directed,  the  same  having  been  approved  June  18,  1902,  by 
the  General  Land  Office,  that  on  and  after  July  1,  1902, 
the  estimated  cost  of  platting  and  other  office  work  in  con- 
nection with  the  survey  of  mineral  claims,  be  computed 
as  follows  : 

For  lode  claim $30.00 

For  placer  claim 35.00 

For  mill-site 30.00 


382  APPLICATION    FOR    PATENT. 

For  mill-site  included  in  one  survey  with 

a  lode  claim 20.00 

For  each  lode  claim  within  and  included 

in  the  survey  of  a  placer  claim 20.00 

For  several  lode  locations  included  in  one 

survey,  the  first  location  named 30.00 

All  other  locations  included,  each 25.00 

For  several  placer  locations  included  in 

one  survey,  the  first  location  named..  35.00 

All  other  locations  included,  each 30.00 

For  affidavit  of  $500  expenditure  of  im- 
provements, after  approval  of  survey.  5.00 

Should  an  amended  order  issue,  an  additional   deposit 
will  be  required. 

C.  C.  GOODALE,  Surveyor  General. 


*  APPLICATION  FOR  PATENT. 


The  following  pages  are  intended  to  contain  the 
forms  of  application  and  proceedings  to  obtain  pat- 
ent, in  the  order  of  time  in  which  the  several  papers 
should  be  made  and  filed. 

Request  for  Official  Survey. 

A  citizen  of  the  United  States,  or  one  who  has 
declared  his  intention  to  become  such,  or  a  corpora- 
tion chartered  within  the  United  States,  being  the 
holder  of  the  possessory  title  to  a  lode  claim,  causes 
application  for  an  official  survey  to  be  made  by  an 

**A.       APPLICATION    FOR    ORDER    FOR    SURVEY. 

DENVEK,  November  1,  1902. 

To  the  U.  8.  Surveyor  General,  District  of  Colorado,  Denver: 
SIR  : — You  are  requested  to  issue  an  order  for  an  of- 
ficial  survey   of  the  mining  claim  of  E.  H.   Cook,  upon  the 

*For  many  valuable  suggestions  upon  points  covered 
by  this  book,  especially  in  this  chapter,  I  am  under  obliga- 
tions to  E.  E.  Chase,  Deputy  U.  S.  Mineral  Surveyor,  Denver, 
and  Charles  J.  Christian,  Chief  of  Mineral  Division  in  the 
Surveyor  General's  office ;  upon  geological  points  to  Ernest 
Le  Neve  Foster,  late  State  Geologist  of  Colorado,  and  Frank- 
lin R.  Carpenter,  Ph.  D. 

**The  forms  for  placer  and  mill  site  applications  are 
substantially  the  same. 


APPLICATION    FOR   PATENT.  383 

Bear  lode,  located  in  Cripple  Creek  mining  district,     Teller 
county,  Pueblo  land  district,  Colorado. 

I  herewith  transmit  certified  copy  of  the  location  cer- 
tificate of  said  claim,  and  have  deposited  for  office  fees*  on 
same  $30  to  the  credit  of  the  treasurer  of  the  United  States, 
at  the  First  National  Bank  (U.  S.  Depository)  with  request 
that  duplicate  certificate  be  forwarded  to  you. 

Send  order  to*E.  E.  Chase,  U.  S.  Dep.  Min.  Sur.,  at 
Denver,  Colorado  Yours  respectfully, 

E.  H.  COOK, 

Claimant. 
By  Emilio  D.  DeSoto,  Attorney. 

Postoffice  address  (of  Claimant)  Denver,  Colorado. 

Postoffice  address  (of  Attorney)  5(ty  Equitable  Bldg., 
Denver. 

The  payment  mentioned  in  the  application  is  not 
by  draft  to  the  Surveyor  General  but  by  a  deposit  in 
a  bank  recognized  as  a  United  States  Depository. 
Upon  payment  to  such  bank  the  claimant  receives 
triplicate  certificates  of  deposit,  of  which  he  mails 
the  Original  to  the  secretary  of  the  treasury  at  Wash- 
ington, the  Duplicate  he  mails  with  the  letter  (A) 
to  the  Surveyor  General  (or  the  bank  forwards  it) 
and  the  Triplicate  he  retains. 

This  certificate  is  a  mere  receipt  for  money  and 
has  no  farther  value,  except  where  the  application 
is  withdrawn,  in  which  case  the  unexpended  balance 
will  be  allowed  to  apply  on  another  survey. 

In  reply  to  the  application  (A)  the  Surveyor 
General  mails  to  the  U.  S.  deputy  mineral  surveyor 
designated  therein  the 

B.      ORDER   FOR    SURVEY. 

DEPARTMENT  OF  THE  INTERIOR, 

OFFICE  OF  U.  S.  SURVEYOR  GENERAL,         > 
DENVER,  COLO.,  November  3,  1902.     ) 

E.  E.  Chase,  U.  8.  Deputy  Mineral  Surveyor  for  the  District 
of   Colorado. 

SIR  : — You  are  hereby  directed  to  survey  the  claim  of 
E.  H.  Cook,  upon  the  Bear  lode,  in  Cripple  Creek  mining  dis- 
trict, Teller  county,  Colorado.  This  survey  will  be  desig- 
nated "Survey  No.  11,310  Pueblo  land  district,"  and  must  be 
made  in  strict  conformity  with  the  location  certificate  (or 
amended  location  certificate)  dated  July  28,  1902. 

C.  C.  GOODALE, 
U.   S.  Surveyor  General  for  Colorado. 

*For  costs  in  Surveyor  General's  office,  see  p.  S81, 


384  APPLICATION    FOR    PATENT. 

With  the  order  B  is  enclosed  a  copy  of  the  loca- 
tion certificate  made  in  the  Surveyor  General's  of- 
fice from  the  certified  copy  filed  by  applicant. 

The  numbers  of  the  survey  lots  were  formerly 
consecutive  in  each  mineral  district,  but  since  the 
abolition  of  mineral  districts  they  are  consecutive 
throughout  the  State,  beginning  with  No.  4,501,  with 
which  number  the  new  series  was  commenced  No- 
vember 30,  1886. 

Survey  to  Conform  to  the  Record. 

This  order  of  survey  "B"  being  received  by  the 
deputy  U.  S.  surveyor  designated  in  "A,"  he  must 
proceed  in  person  to  the  premises,  make  an  actual 
survey,  and  mark  each  post  with  the  number  of  the 
survey  and  the  number  of  the  corner. 

Where  there  has  been  a  previous  survey  from 
which  the  certificate  of  location  has  been  made,  it 
will  be  followed. 

The  copy  of  location  certificate  mentioned  as  in- 
closed in  "A"  must  be  certified*  by  the  recorder. 

The  deputy,  in  making  his  official  survey,  must 
follow  the  lines  as  staked  upon  the  ground. 

Changing  Lines  After  Order  Received. 

The  Surveyor  General  will  not  allow  a  serious  de- 
parture from  the  lines  called  for  in  the  location 
certificate,  without  insisting  upon  the  filing  of  an 
amended  or  relocation  certificate  in  the  office  of  the 
recorder  of  the  proper  county,  and  the  deposit  of  a 
certified  copy  of  such  amended  record  in  the  Sur- 
veyor General's  office,  and  when  such  certified  copy 
has  been  filed  an  amended  order  of  survey  issues, 
in  which,  if  any  new  ground  has  been  acquired,  the 
original  number  of  the  survey  is  abandoned  and  a 
new  number  in\  the  current  series  substituted.  An 
additional  fee  of  $5  is  charged  for  the  amended 
order,  besides  the  cost  of  additional  labor,  if  any, 
imposed  on  the  Surveyor  General's  office. 


APPLICATION   FOR   PATENT.  385 

Amending  Record  After  Order  Received. 

If  the  certificate  be  indefinite,  or  if  the  end  lines 
are  not  parallel,  or  if  not  properly  tied,  or  if  the  cer- 
tificate be  without  date  or  otherwise  irregular,  it  will 
be  returned  for  amendment.  Care  in  the  first  in- 
stance will  obviate  delays  on  such  grounds. 

For  form  of  amended  location  certificate  see 
pages  119  and  121. 

In  surveys  upon  old  lodes  (before  May  10,  1872) 
whose  location  certificates  were  not  supposed  to  call 
for  course  or  monument,  the  deputy  is  presumed  to 
make  his  official  survey  according  to  the  location 
and  original  claim  of  the  locator,  but  practically  it  is 
made  wherever  it  may  be  supposed  to  cover  the  vein, 
or  wherever  vacant  ground  can  be  found  to  include 
in  the  survey. 

In  almost  all  cases  of  early  location  (and  in 
many  recent  ones)  it  is  advisable  to  make  a  formal 
relocation  before  asking  for  order  for  survey.  This 
may  save  time  in  the  Surveyor  General's  office  and 
prevent  fatal  results  in  resisting  adverse  claims. 

For  instructions  as  to  making  survey  on  the 
ground,  see  LAND  OFFICE  RULES,  pp.  352,  369. 

Delay  to  Proceed  With  Survey. 

The  first  applicant  has  priority  as  long  as  he 
proceeds  with  diligence.  When  he  fails  to  perfect, 
to  the  injury  of  a  party  desiring  to  proceed,  the  steps 
to  be  taken  by  the  latter  are  indicated  in  Sec.  13  of 
the  Circular,  p.  380. 

The  survey  being  complete  the  deputy  makes 
and  forwards  to  the  Surveyor  General  a  diagram  of 
the  lode  giving  its  corners,  courses,  distances,  ties, 
conflicts,  adjoiners  and  improvements,  which  is 
known  as 

C.       THE    PRELIMINARY    PLAT. 

The  plat  made  by  the  deputy  was  formerly 
treated  as  the  official  plat  of  the  claim,  from  which 
the  connected  plat  of  all  claims  kept  by  the  Surveyor 
General  was  made,  but  under  present  practice  the 

13 


386 


APPLICATION    FOR    PATENT. 


N 


0 
O 


o/r 


O 


\ 


\ 

\ 

Sup.  NO.  U3fo 
BEAR    LOO£ 


U&DEP.  M/N.  > 


SURVEY    NO.    11,310^   PUEBLO   LAND  DISTRICT. 


APPLICATION    FOR   PATENT. 


387 


deputy's  plat  is  only  treated  as  a  correction  to  the 
field  notes,  all  official  plats  now  being  made  in  the 
office  of  the  Surveyor  General. 

Along  with  this  diagram  or  preliminary  plat 
"C,"  the  deputy  forwards  to  the  Surveyor  General 
his 

D.      FIELD  NOTES, 

the  following  form  being  arranged  to  illustrate  the 
more  ordinary  complications: 


Survey  No.  11,310. 


Pueblo  Land  District. 


FIELD  NOTES 

Of  the  survey  of  the  claim  of  E.  H.  Cook,  known  as  the 
Bear  lode,  in  Cripple  Creek  mining  district,  Teller  County, 
Colorado. 

Section  22,  Township  15  South,  Range  69  West. 

Surveyed  under  instructions  dated  November  3,  1902,  by 
E.  E.  Chase,  U.  S.  Deputy  Mineral  Surveyor. 

Survey  began  November  6,  1902,  and  completed  Novem- 
ber 6,  1902. 

Address  of  claimant :     E.  H.  COOK,  Denver,  Colorado. 

SURVEY  NO.  11310. BEAR  LODE. 


FEET. 


1242. 
1440.28 

1500. 


Beginning  at  Cor.  No.  1. 

Identical  with  Cor.  No.  1  of  the  location. 

A  spruce  post,  5  ft.  long,  4  ins.  square,  set 
2  ft.  in  the  ground,  with  mound  of  stone,  marked 
1-11310  whence 

The  W.  %  cor.  Sec.  22,  T.  15  S.  R.  69  W.  of 
the  6th  Principal  Meridian,  bears  S.  79°  34'  W. 
1378.2  ft. 

Cor.  No.  1,  Gottenburg  lode  (unsurveyed), 
Neals  Mattson,  claimant,  bears  S.  40°  29'  W. 
187.67  ft. 

A  pine  12  ins.  dia.  blazed  and  marked  B.  T. 
1-11310  bears  S.  7°  25'  E.  22  ft. 

Mt.  Pisgah  bears  S.  80°   15'  W. 
Bull  Hill  bears  N.  80°  W. 

Thence  S.  24°  45'  W. 
Va.   15°   12'  E. 

To  trail,  course  N.  W.  and  S.  E. 
Intersect  line  1-4,   Sur.   No.   2560,   at  N.   38°   52' 

W.  76.6  ft.  from  Cor.  No.  1. 

To  Cor.  No.  2.      Identical  with  Cor.  No.  2  of  the 
location. 

A  granite  stone  25x9x6  ins.  set  18  ins.  in  the 
ground  chiseled  2-11310,  whence 

Cor.  No.  1,  Sur.  No.  2560,  Carnarvon  lode, 
David  Davis  et  al.,  claimants,  bears  N.  88°  E. 
61.6  ft. 


388  APPLICATION    FOR   PATENT. 

North  end  of  bridge  over  Grassy  gulch  bears 
N.  65°  15'  W.  1250  ft. 

Thence  N.  65°  15'  W. 
Va.  15°  20'  E. 

300.  To  Cor.  No.  3.      Identical  with  Cor.  No.  3  of  lo- 

cation. 

A  cross  at  corner  point,  and  3-11310  chiseled 
on  a  granite  rock  in  place,  20x14x6  ft.  above  the 
general  level,  whence 

Cor.  No.  2,  Sur.  No.  2560  bears  S.   72°  45'  E. 
325  ft. 

A  spruce  16  ins.  dia.  blazed  and  marked  B. 
T.  3-11310  bears  S.  58°  W.  18  ft. 
Thence  N.  24°  45'  E. 
Va.  15°  20'  E. 
218.  Intersect  line  4-1,  Sur.  No.  2560  at  N.  38°  52'  W. 

396.4  ft.  from  Cor.   No.  1. 
371.74       To  trail,  course  N.  W.  and  S.  E. 
1145.62       Intersect  line  2-3,  Gottenburg  lode,  at  N.  25°  56' 

W.  76.26  ft.  from  Cor.  No.  2. 

1500.  To  Cor.  No.  4.      Identical  with  Cor.  No.  4  of  the 

location. 

A  pine  post  4.5  ft.  long,  5  ins.  square,  set  one 
foot  in  the  ground,  with  mound  of  earth  and 
stone,  marked  4-11310  whence 

A  cross  chiseled  on  rock  in  place,  marked  B. 
R.  4-11310  bears  N.  28°  10'  E.  58.9  ft. 
Thence  S.  65°  15'  E. 
Va.  15°  12'  E. 
28.5          Intersect  line  4-1,  Gottenburg  lode,  at  N.  25°   56' 

W.  285.13  ft.  from  Cor.  No.  1. 
300.  To  Cor.  No.  1,  the  place  of  beginning.* 

Area. 

Total  area  of  Bear  lode 10.33     acres 

Less  area  in  conflict  with 

Sur.  No.  2560 956  acre 

Gottenburg  lode    1.363  ncre     2.319  acres 

Net  area  Bear  lode 8.011  acres 

Location. 

This  claim  is  located  in  the  W.  V2  Sec.  22,  T.  15  S.  R. 
69  W. 

Expenditure  of  Five  Hundred  Dollars. 
I  certify  that  the  value  of  the  labor  and  improvements 
upon    this    claim   placed    thereon    by    the    claimant    and    his 
grantors,    is   not    less    than   five   hundred   dollars,    and   that 
said  improvements  consist  of 

*Adjoining  claimants  are  mentioned  as  they  are  reached 
in  the  notes,  as  they  ambit  the  claim. — Rule  1$. 


APPLICATION    FOR    PATENT.  389 

The  discovery  shaft  of  the  Bear  lode,  6x3  ft.  10  ft. 
deep  in  earth  and  rock,  which  bears  from  Cor.  No.  2  N.  4° 
E.  362  ft. 

Value  $80. 

An  incline  7x5  ft.  45  ft.  deep  in  coarse  gravel  and 
rock,  timbered,  course  N.  58°  15'  W.  dip  62°,  the  mouth  of 
which  bears  from  Cor.  No.  2  N.  19°  37'  B.  1025  ft. 

Value  $550. 

A  log  shaft-house  14  ft.  square,  over  the  discovery 
shaft 

Value  $100. 

Two-thirds  interest  in  a  tunnel  6.5x5  ft.  running  due 
west  835  ft,,  timbered,  the  mouth  of  which  bears  from  Cor. 
No.  2  N.  51°  15'  E.  837  ft. 

This  tunnel  is  in  course  of  construction  for  the  de- 
velopment of  the  Bear  lode  and  also  for  the  Carnarvon  lode, 
Survey  No.  2560,  David  Davis  et  a?.,  claimants,  the  remain- 
ing one-third  interest  therein  having  already  been  included 
in  the  estimate  of  five  hundred  dollars  expenditure  upon  the 
latter  claim. 

Total  value  of  tunnel,  $13,000. 

A  drift  6.5x4  ft.  on  the  Bear  lode,  beginning  at  a  point 
in  tunnel  550  ft.  from  the  mouth,  and  running  N.  20°  20'  E. 
195  ft.  thence  N.  54°  15'  E.  40  ft.  to  breast. 

Value  $2,800. 

Other  Improvements. 

A  log  cabin  35x28  ft.,  the  S.  W.  corner  of  which  bears 
from  Cor.  No.  3  N.  30°  44'  E.  650  ft. 

Said  cabin  belongs  to  the  claimant  herein. 

An  adit  6x4  ft.  running  N.  70°  50'  W.  100  ft.,  the 
mouth  of  which  bears  from  Cor.  No.  1  S.  58°  12'  W.  323  ft, 
belonging  to  Neals  Matfson,  claimant  of  the  Gottenburg  lode. 

Instrument. 

The  survey  was  made  with  a  Buff  <&  Berger  transit  with 
Smith's  solar  attachment.  The  courses  were  deflected  from 
the  true  meridian  as  determined  by  solar  observations.  The 
distances  were  measured  with  500  and  100  ft.  steel  tapes. 

MEMORANDA    AS    TO    CHAINMEN.,   ETC.        (PART   OF    "D".) 

A  list  of  the  names  of  the  individuals  employed  by 
E.  E.  Chase,  United  States  Deputy  Mineral  Surveyor,  to  as- 
sist in  running,  measuring,  and  marking  the  lines,  corners 
and  boundaries  described  in  the  foregoing  field  notes  of  the 
survey  of  the  mining  claim  of  E.  H.  Cook,  known  as  the  Bear 
lode,  and  showing  the  respective  capacities  in  which  they 
acted. 

L.  E.  Lemen,  Chainman. 

W.  A.  Jayne,  Axman. 

AFFIDAVIT    OF    ASSISTANTS. 

STATE  OF  COLORADO,  County  of  Teller:  ss. 

We,  L.  E.  Lemen  and  W.  A.  Jayne,  do  solemnly  swear 
that  we  assisted  E.  E.  Chase,  United  States  Deputy  Mineral 


390  APPLICATION    FOR    PATENT. 

Surveyor,  in  marking  the  corners  and  surveying  the  bound- 
aries of  the  mining  claim  of  E.  H.  Cook,  known  as  the  Bear 
lode,  represented  in  the  foregoing  field  notes  as  having  been 
surveyed  by  said  Deputy  Mineral  Surveyor  and  under  his 
direction  and  that  said  survey  has  been  in  all  respects,  to 
the  best  of  our  knowledge  and  belief,  faithfully  and  correctly 
executed,  and  the  corner  and  boundary  monuments  established 
according  to  law  and  the  instructions  furnished  by  the 
United  States  Surveyor  General  for  Colorado. 

L.  E.  LEMEN,  Chainman. 

W.   A.    JAYNBJ  Axman. 

Subscribed  and  sworn  to  by  the  above  named  persons 
before  me  this  8th  day  of  November,  1902. 

Henry   H.   Clark, 
[SEAL.]  Notary  Public. 

FINAL  AFFIDAVIT  OF  U.  S.  DEPUTY  MINERAL  SURVEYOR. 

Part  of  "D." 

I,  Edwin  E.  Chase,  U.  S.  deputy  mineral  surveyor, 
do  solemnly  swear  that,  in  pursuance  of  instructions  received 
from  the  United  States  Surveyor  General  for  Colorado, 
dated  November  3,  1902,  I  have,  in  strict  conformity  to  the 
laws  of  the  United  States,  the  official  regulations  and  in- 
structions thereunder,  and  the  instructions  of  said  sur- 
veyor general,  faithfully  and  correctly  executed  the  sur- 
vey of  the  mining  claim  of  E.  H.  Cook,  known  as  the  Bear 
lode,  situate  in  Cripple  Creek  Mining  District,  Teller 
County,  Colorado,  in  Section  22,  Township  No.  15,  8.  Range 
No.  69  W.,  designated  as  Survey  No.  11,310,  as  represented 
in  the  foregoing  field  notes,  which  accurately  show  the 
boundaries  of  said  mining  claim  as  distinctly  marked  by 
monuments  on  the  ground,  and  described  in  the  attached 
copy  of  the  location  certificate,  which  was  received  by  me 
from  the  surveyor  general  with  said  instructions,  and  that 
all  the  corners  of  said  survey  have  been  established  and 
perpetuated  in  strict  accordance  with  the  law,  official  regu- 
lations and  instructions  thereunder ;  and  I  do  further  sol- 
emnly swear  that  the  foregoing  are  the  true  and  original 
field  notes  of  said  survey  and  my  report  therein,  and  that 
the  labor  expended  and  improvements  made  upon  said  min- 
ing claim  by  claimant  or  his  grantors  are  as  therein  fully 
stated,  and  that  the  character,  extent,  location  and  itemized 
value  thereof  are  specified  therein  with  particularity  and 
full  detail,  and  that  no  portion  of  said  labor  or  improvements 
so  credited  to  this  claim  has  been  included  in  the  estimate 
of  expenditure  upon  any  other  claim. 

EDWIN  E.  CHASE, 
U.  S.  Deputy  Mineral  Surveyor. 

Subscribed  and  sworn  to  by  the  said  Edwin  E.  Chase, 
U.  S.  deputy  mineral  surveyor,  before  me,  a  notary  public, 
this  10th  day  of  November,  1902.  Henry  H.  Clark, 

[SEAL.]  Notary  Public. 


APPLICATION    FOR    PATENT.  391 

The  Preliminary  Plat  "C"  and  Field  Notes  "D" 
containing,  besides  what  are  strictly  the  Field  Notes, 
also  the  memoranda  of  improvements,  list  of  helpers, 
etc.,  with  certificate  and  affidavit  as  above  given,  are 
then  forwarded  to  the  Surveyor  General,  who  com- 
pares the  plat,  reviews  the  notes,  etc.,  and  if  errors 
appear,  as  they  often  do,  or  if  he  cannot  make  the 
connections  agree  with  his  "connected  plat,"  they 
are  returned  for  correction;  but  if  correct,  the  Field 
Notes  are  endorsed  as  follows: 

E.       APPROVAL    OF    SURVEY. 

DEPARTMENT  OF  THE  INTERIOR.         ) 
Office  of  the  U.  S.  Surveyor  General,     r 

DENVER,  COLO.,  Dec.  11,  1902. 

I,  C.  C.  Goodale,  U.  S.  Surveyor  General  for  Colorado, 
do  hereby  certify  that  the  foregoing  and  hereto  attached 
field  notes  and  return  of  the  survey  of  the  mining  claim  of 
E.  H.  Cook,  known  as  the  Bear  lode,  situated  in  Cripple 
Creek  Mining  District,  Teller  County,  Colorado,  in  Section 
22,  Township  No.  15  8.,  Range  No.  69  W.  designated  as  Sur- 
vey No.  11310,  executed  by  E.  E.  Chase,  U.  S.  deputy  min- 
eral surveyor,  November  6,  1902,  under  my  instructions  dated 
November  3,  1902,  have  been  critically  examined  and  the  nec- 
essary corrections  and  explanations  made,  and  the  said  field 
notes  and  return,  and  the  survey  they  describe  are  hereby 
approved.  A  true  copy  of  the  copy*  of  the  location  cer- 
tificate filed  by  the  applicant  for  survey  is  included  in  the 
field  notes. 

C.  C.  GOODALE, 
U.  S.  Surveyor  General  for  Colorado. 

The  field  notes  "D"  endorsed  with  the  official 
approval  "E"  are  then  bound  and  kept  permanently 
for  reference  in  the  Surveyor  General's  office  after 
he  has  caused  to  be  made  from  them 

F.       THE    FINAL    PLAT 

of  which  the  original  is  retained  in  the  Surveyor 
General's  office,  one  copy  is  forwarded  by  the  Sur- 
veyor General  to  the  proper  local  land  office  and  two 
copies  are  forwarded  to  the  deputy  surveyor. 

*This  is  the  copy  mailed  to  the  deputy  with  the  order 
B,  and  has  now  been  returned  attached  to  the  field  notes. 


392  APPLICATION    FOR    PATENT. 

The  original  and  each  copy  of  the  final  plat  "F" 
is  certified  by  endorsement  thereon,  as  follows: 

G.     SURVEYOR    GENERAL'S    APPROVAL    OF    SURVEY    AND 

CERTIFICATE   OF    $500    IMPROVEMENTS. 

Date  of  (amended)  location,  July  28,  1902.  Mineral  Sur- 
vey No.  11310,  Pueblo  land  district. 

Plat  of  the  claim  of  E.  H.  Cook,  known  as  the  Bear 
lode,  Cripple  Creek  mining  district,  Teller  County,  Colorado, 
containing  an  area  of  8.011  acres.  Scale  of  200  feet  to  the 
inch.  Variation  15°  20'  east.  Surveyed  by  E.  E.  Chase, 
U.  S.  Deputy  Mineral  Surveyor,  Nov.  6,  1902. 

The  original  field  notes  of  the  survey  of  the  mining 
claim  of  E.  H.  Cook,  known  as  the  Bear  lode,  from  which 
this  plat  has  been  made  under  my  direction,  have  been  ex- 
amined and  approved,  and  are  on  file  in  this  office,  and  I 
hereby  certify  that  they  furnish  such  an  accurate  descrip- 
tion of  said  mining  claim  as  will,  if  incorporated  into  a 
patent,  serve  fully  to  identify  the  premises,  and  that  such 
reference  is  made  therein  to  natural  objects  or  permanent 
monuments  as  will  perpetuate  and  fix  the  locus  thereof. 
I  further  certify  that  five  hundred  dollars'  worth  of  labor 
has  been  expended  or  improvements  made  upon  said  mining 
claim  by  claimant  or  his  grantors  and  that  said  improve- 
ments consist  of  the  discovery  shaft,  an  incline,  a  shaft 
house,  an  interest  in  a  tunnel,  and  a  drift,  as  appears  by  the 
affidavit  of  the  deputy  surveyor ;  that  the  location  of  said 
improvements  is  correctly  shown  upon  this  plat,  and  that 
no  portion  of  said  labor  or  improvements  has  been  included 
in  the  estimate  of  expenditures  upon  any  other  claim. 

And  I  further  certify  that  this  is  a  correct  plat  of  said 
mining  claim  made  in  conformity  with  said  original  field 
notes  of  the  survey  thereof,  and  the  same  is  hereby  ap- 
proved. C.  C.  GOODALE, 

U.  S.  Surveyor  General  for  Colorado. 
U.  S.  Surveyor  General's  Office,  Denver,  Colorado. 

Dec.  11,  1902. 

The  amount  of  improvements  is  to  be  found  by 
the  Surveyor  General  or  his  deputy,  or  from  the  tes- 
timony of  witnesses. — U.  8.  v.  King,  83  Fed.  188. 

Along  with  two  copies  of  the  diagram  "F,"  with 
its  endorsement  "G"  the  Surveyor  General  forwards 
to  the  surveyor  fdr  claimant  the 

H.     TRANSCRIPT    OF    FIELD    NOTES,    otherwise    called 
"APPROVED  FIELD  NOTES." 

This  instrument  "H"  is  verbatim  the  same  as 
"D,"  including  all  its  exhibits,  but  not  the  Surveyor 


APPLICATION   FOR   PATENT.  393 

General's  certificate  "G."     Instead  of  the  certificate 
"G"  such  transcript  is  certified  as  follows: 

I.      SURVEYOR      GENERAL'S      CERTIFICATE      TO      TRAN- 
SCRIPT "H." 

DEPARTMENT  OF  THE  INTERIOR.,  ) 

OFFICE  OF  U.  S.  SURVEYOR  GENERAL. 

Denver.  Colorado,  Dec.  11,  1902.     ) 

I,  C.  C.  Goodale,  U.  S.  Surveyor  General  for  Colorado, 
do  hereby  certify  that  the  foregoing  transcript  of  the  field 
notes,  return  and  approval  of  the  survey  of  the  mining 
claim  of  E.  H.  Cook,  known  as  the  Bear  lode,  situate  in  Crip- 
ple Creek  mining  district,  Teller  County,  Colorado,  in  Sec- 
tion 22,  Township  No.  15,  S.  Range  No.  69  west  6th  P.  M.  has 
been  correctly  copied  from  the  originals  on  file  in  this  office  ; 
that  said  field  notes  furnish  such  an  accurate  description 
of  said  mining  claim  as  will,  if  incorporated  into  a  patent, 
serve  fully  to  identify  the  premises,  and  that  such  refer- 
ence is  made  therein  to  natural  objects  or  permanent  monu- 
ments as  will  perpetuate  and  fix  the  locus  thereof. 

And  I  further  certify  that  five  hundred  dollars'  worth 
of  labor  has  been  expended  or  improvements  made  upon  said 
mining  claim  by  claimant  or  his  grantors,  and  that  said  im- 
provements consist  of  the  discovery  shaft,  an  incline,  a 
shaft  house,  an  interest  in  a  tunnel,  and  a  drift,  and  that 
no  portion  of  said  labor  or  improvements  has  been  in- 
cluded in  the  estimate  of  expenditures  upon  any  other  claim. 

I  further  certify  that  the  plat  thereof,  filed  in  the  U. 
S.  land  office  at  Pueblo,  is  correct  and  in  conformity  with 
the  foregoing  field  notes. 

C.  C.  GOODALE, 
United  States  Surveyor  General  for  Colorado. 

These  matters  are  all  preliminary  to  the  appli- 
cation for  patent  proper  which  is  made  to  the  local 
land  office,  these  proceedings  in  the  Surveyor  Gen- 
eral's office  being  necessary  because  each  lode  claim 
must  be  separately  surveyed,  whereas  in  case  of 
agricultural  land  a  party  simply  enters  upon  a  par- 
ticular quarter  section  which  has  been  already  sur- 
veyed and  platted. 

Delivery  of  Papers  to  the  Attorney. 

The  above  transcript  "H"  received  from  the 
Surveyor  General  which  is  generally  termed  the  "Ap- 
proved Field  Notes,"  the  deputy  then  delivers;  along 
with  the  plats  or  diagrams  received  from  the  same 
office,  to  the  attorney  for  the  claimant,  who  is  sup- 


394  APPLICATION    FOR   PATENT. 

posed  to  supervise  the  signing  and  filing  of  all  the 
subsequent  papers,  and  takes  charge  of  the  applica- 
tion from  this  point,  although  in  fact  the  further 
papers  and  the  superintendence  of  the  posting,  etc., 
are.  frequently  left  in  charge  of  the  deputy. 

Respective  Duties  of  Surveyor  and  Attorney. 

The  deputy  surveyors  are  not  allowed  to  act  as 
attorneys. — Rule  128.  The  surveyor's  services  seem 
properly  to  end  with  the  preparation  of  papers  for 
the  Surveyor  General's  office  and  the  reception  of 
papers  from  that  office.  These  latter  he  turns  over 
to  the  attorney,  who  makes  out  or  supervises  all 
papers  intended  for  the  land  office.  The  deputy's 
aid  should  not,  however,  be  discarded  pending  the 
application,  as  with  many  of  the  forms  he  is  more 
familiar  than  attorneys  generally  are.  The  profes- 
sion ought  not  to  object  to  deputies  filling  out  the 
ordinary  blanks,  especially  in  cases  where  no  adverse 
claim  is  expected,  nor  to  their  attending  to  posting, 
publication,  proofs  of  citizenship,  etc.,  if  they  will 
not  attempt  to  make  out  the  location  and  relocation 
certificates — which  are  strictly  legal  papers — the  in- 
terference of  the  surveyors  in  these  matters  generally 
leaving  applicants  in  a  position  where  they  seriously 
need  an  attorney's  advice,  if  not  already  too  late 
to  be  of  service.  And  in  cases  of  land  office  contest 
any  interference  by  the  surveyor  would  be  officious 
and  reprehensible. 

The  claimant  or  his  attorney  then  prepares  four 
copies  of  "K":  one  for  posting  on  the  claim,  one  to 
be  attached  to  proof  of  posting,  one  for  publication 
in  newspaper  and  one  for  posting  in  Land  Office. 

K.       NOTICE    OF    APPLICATION    FOR    U.    S.    PATENT. 

Survey  No.  11310. 

U.  S.  LAND  OFFICE,  Pueblo,  December  15,  1902. 

Notice  is  hereby  given  that  in  pursuance  of  the  Act 
of  Congress  approved  May  10,  1872,  E.  H.  Cook,  whose  post- 
office  is  Denver,  Colorado,  has  made  application  for  a  pat- 
ent for  1500  linear  feet  on  the  Bear  lode,  bearing  gold  and 
silver,  the  same  being  365  feet  southwesterly  and  1135  feet 


APPLICATION   FOR   PATENT.  395 

northeasterly  from  discovery  shaft  thereon,  with  surface 
ground  300  feet  in  width,  situate  in  Cripple  Creek  mining 
district,  Teller  County,  State  of  Colorado,  and  described  by 
the  official  plat  and  by  the  field  notes  on  file  in  the  office 
of  the  register  of  Pueblo  land  district,  Colorado,  as  fol- 
lows, viz.  : 

Beginning  at  corner  No.  1,  whence  the  W.  %  cor.  Sec. 
22,  T.  15  S.  II.  G9  W.  of  the  6th  Principal  Meridian,  bears 
S.  79°  34'  W.  1378.2  feet. 

Cor.  No.  1,  Gottenburg  lode  (unsurveyed)  Neals  Matt- 
son,  claimant,  bears  S.  40°  29'  W.  187.67  ft. 

Thence  S.  24°  45'  W.  1500  ft.  to  cor.  No.  2,  whence 
cor.  No.  1,  sur.  No.  2560,  Carnarvon  lode,  bears  N.  88°  E. 
61.6  ft.  Thence  N.  65°  15'  W.  300  ft.  to  cor.  No.  3.  Thence 
N.  24°  45'  E.  1500  ft.  to  cor.  No.  4.  Thence  S.  65°  15' 
E.  300  ft.  to  cor.  No.  1,  the  place  of  beginning;  containing 
8.011  acres  (exclusive  of  survey  No.  2560  and  the  Gotten- 
burg lode),  and  forming  a  portion  of  the  west  %  of  sec- 
tion 22,  in  township  15  S.  Range  69  W.  of  the  Sixth  Prin- 
cipal Meridian.  The  names  of  adjoining  and  conflicting 
claims  as  shown  by  the  plat  of  survey  are  the  Gottenburg 
lode  on  the  northwest  and  the  Carnarvon  lode  on  the  south. 

Witness:  E.  H.  COOK. 

John  C.  Clark. 
B.  F.  Pinson. 

Naming  Adjoining  Claims. 

The  Regulations  (Rule  39}  require  the  notice  to 
give  "the  names  of  adjoining  and  conflicting  claims 
as  shown  by  the  Plat  of  Survey"— 29  L.  D.  250— and 
by  Rules  38  and  149,  all  conflicts  with  surveyed 
claims,  and  with  unsurveyed  claims  intended  to  be 
excluded,  are  required  to  be  shown  in  the  field  notes. 

One  of  the  notices  "K"  should  be  at  once  posted 
on  the  claim,  along  with  one  of  the  certified  dia- 
grams received  from  the  Surveyor  General,  the  two 
papers  being  loosely  attached,  or,  as  more  usual, 
placed  side  by  side,  in  some  conspicuous  place  on  the 
claim  (usually  at  the  discovery  shaft)  in  presence 
of  two  persons  who  attach  their  signatures  as  shown 
upon  form  "K." 

Another  of  the  notices  "K"  is  attached  to 

L.        PROOF     OF     POSTING     NOTICE     AND     DIAGRAM     ON     THE 
CLAIM. 

STATE  OF  COLORADO,  Teller  County  :  ss. 

John  C.  Clark  and  D.  F.  Pinson,  each  for  himself,  and 
not  one  for  the  other,  being  first  duly  sworn  according  to 
law,  deposes  and  says,  that  he  is  a  citizen  of  the  United 


396  APPLICATION    FOR    PATENT. 

States,  over  the  age  of  twenty-one  years,  and  was  present 
on  the  15th  day  of  December,  A.  D.  1902,  when  a  plat  repre- 
senting the  claim  of  E.  H.  Cook,  and  certified  as  correct  by 
the  United  States  Surveyor  General  of  Colorado,  and  desig- 
nated by  him  as  lot  No.  11,310  together  with  a  notice  of 
the  intention  of  said  E.  H.  Cook  to  apply  for  a  patent  for  the 
mining  claim  and  premises  so  platted  was  posted  in  a  con- 
spicuous place  upon  said  mining  claim,  to  wit :  upon  the 
outside  of  the  door  of  the  shaft  house  at  the  discovery, 
where  the  same  could  be  easily  seen  and  examined.  A  copy 
of  the  notice  so  posted  upon  said  claim  is  herewith  attached 
and  made  a  part  of  this  affidavit. 

JOHN    C.  CLARK. 

B.   F.    PlNSON. 

Subscribed  and  sworn  to  before  me  this  15th  day  of 
December,  A.  D.  1902,  and  I  hereby  certify  that  I  consider  the 
above  deponents  credible  and  reliable  witnesses,  and  that 
the  foregoing  affidavit  and  notice  were  read  by  each  of  them 
before  their  signatures  were  affixed  thereto,  and  the  oath 
made  by  them. 

[SEAL.]  Henry  Moody,  Notary  Public. 

The  form  "L"  is  subscribed  by  at  least  two  post- 
ing witnesses.  The  applicant  does  not  sign  it,  and 
should  not  be  one  of  the  two  witnesses. 

The  third  notice  "K,"  signed  by  the  applicant, 
but  not  by  the  witnesses,  goes  with  the  second  of 
the  plats  received  from  the  Surveyor  General  (page 
$91},  when  it  is  sent  with  the  first  set  of  papers  to 
the  land  office,  where  the  register  attaches  his  at- 
testing signature,  and  it  will  remain  posted  in  the 
land  office,  while  its  fellow  notice  and  plat  are  stand- 
ing on  the  claim  during  the  period  of  publication. 

The  next  paper  to  be  prepared  is  the 

M.       APPLICATION    FOB    PATENT. 

STATE  OF  COLORADO/  Teller  County  :  ss. 

Application  for  patent  for  the  Bear  Lode  Mining  Claim. 
To  the  Register  and  Receiver  of  the  IT.  S.  Land  Office  at 
Pueblo,  Colorado  : 

E.  H.  Cook,  whose  postoffice  address  is  Denver,  Colo- 
rado, being  duly  sworn,  according  to  law,  deposes  and  says  : 
that  in  virtue  of  a  compliance  with  the  mining  rules,  regu- 
lations and  customs,  by  himself  (and  his  grantors)  he,  the 
applicant  for  patent  herein,  has  become  the  owner  of  and 
is  in  the  actual,  quiet  and  undisturbed  possession  of  1500 
linear  feet  of  the  Bear  vein,  lode  or  deposit,  bearing  gold  and 
silver,  together  with  surface  ground  300  feet  in  width,  for 
the  convenient  working  thereof  as  allowed  by  local  rules  and 


APPLICATION   FOR   PATENT.  397 

customs  of  miners,  said  mineral  claim,  vein,  lode  or  deposit 
and  surface  ground  being  situate  in  Cripple  Creek  mining 
district,  County  of  Teller,  and  State  of  Colorado,  as  more 
particularly  set  forth  and  described  in  the  official  field  notes 
of  survey  thereof,  hereto  attached,  dated  December  11,  1902, 
find  in  the  official  plat  of  said  survey,  now  posted  conspicu- 
ously upon  said  mining  claim  or  premises,  a  copy  of  which 
is  filed  herewith.  Deponent  further  states  that  the  facts 
relative  to  the  right  of  possession  of  himself  to  said  min- 
ing claim,  vein,  lode,  or  deposit  and  surface  ground  so  sur- 
veyed and  platted,  are  substantially  as  follows,  to  wit :  The 
Bear  lode  was  discovered  on  or  about  the  fourth  day  of  July, 
A.  D.  1897,  by  James  A.  McFadden,  who  afterwards,  and  be- 
fore the  twenty-eighth  day  of  July,  A.  D.  1897,  completed 
a  location  of  the  same  as  a  mining  claim  of  the  length  and 
width  aforesaid,  having  substantially  located  the  same  and 
otherwise  complied  with  all  local  rules  and  regulations, 
the  laws  of  the  State  of  Colorado  and  of  the  United  States 
relating  to  mining  claims. 

The  said  discoverer  and  locator  conveyed  all  his  inter- 
est in  the  claim  to  Chas.  O.  Baxter  and  Frank  M.  Taylor, 
who  by  divers  intermediate  conveyances  transferred  the  same 
to  applicant,  who  thereupon  took  possession  and  is  the  sole 
present  owner,  all  of  which  will  more  fully  appear  by  refer- 
ence to  the  copy  of  the  original  record  of  location  and  the 
abstract  of  title  herewith  filed ;  the  value  of  the  labor  done 
and  improvements  made  upon  said  Bear  lode  mining  claim 
by  the  applicant  (and  his  grantors)  being  equal  to  the  sum 
of  five  hundred  dollars.  Said  improvements  consist  of  dis- 
covery shaft,  an  incline,  shaft  house,  a  drift  and  two-thirds 
interest  in  tunnel  (but  expressly  excepting  and  excluding 
from  this  application  all  that  portion  of  the  ground  em- 
braced in  mining  claim  or  survey  designated  as  lot  No.  2560 
and  the  claim  of  Neals  Mattson  on  the  Gottenburg  lode)  in 
consideration  of  which  facts  and  in  conformity  with  the 
provisions  of  Chapter  VI,  Title  32  of  the  Revised  Statutes 
of  the  United  States,  application  is  hereby  made  for  and 
in  behalf  of  said  E.  H.  Cook  for  a  patent  from  the  United 
States  for  the  said  Bear  lode  mining  claim,  vein,  lode  or  de- 
posit and  the  surface  ground  so  officially  surveyed  and  plat- 
ted. E.  H.  COOK. 

Subscribed  and  sworn  to  before  me  this  16tJi  day  of 
December,  A.  D.  1902,  and  I  hereby  certify  that  I  consider 
the  above  deponent  a  credible  and  reliable  person,  and  the 
foregoing  affidavit,  to  which  was  attached  the  field  notes  of 
survey  of  the  Bear  lode  mining  claim,  was  read  and  exam- 
ined by  him  before  his  signature  was  affixed  thereto  and 
the  oath  made  by  him.  Henry  Moody, 

[SEAL.]  Notary  Public. 

Where  an  application  is  presented  in  the  land 
office  before  the  plat  and  notice  have  been  posted  on 
the  claim  as  required  by  R.  S.  §  2325,  such  application 


398  APPLICATION    FOR    PATENT. 

has  been  held  void  al)  initio. — 1  L.  D.  551 ;  Rev.  Ed. 
545. 

This  application  "M"  is  attached  to  the  tran- 
script "H,"  commonly  styled  "The  Approved  Field 
Notes." 

At  the  same  time  there  should  be  prepared: 

N.— The   abstract  of  title. 

O. — The  proof  of  citizenship. 

P. — The  publisher's  agreement. 

Q. — The  publication  notice — which,  with  those 
already  referred  to,  complete  the  first  set  of  papers, 
to  wit: 

N.      ABSTRACT  OF  TITLE. 

STATE  OF  COLORADO,  County  of  Teller:  ss. 

I,  Frank  P.  Mannioc,  Clerk  and  ex-officio  Recorder  of 
said  County,  do  hereby  certify  that  the  foregoing  is  a  true, 
full  and  correct  abstract  of  the  title  of  the  Bear  lode  therein 
described,  as  the  same  appears  of  record  in  nay  office,  and 
shows  all  location  certificates,  deeds  or  other  instruments 
appearing  of  record  purporting  to  convey  or  affect  the  same. 
Witness  my  hand  and  the  seal  of  said  County,  this  16th 
day  of  December ,  A.  D.  1902. 

FRANK  P.  MANNIX, 
[County  Seal.]  Recorder. 

It  should  contain  a  memorandum  of  the  location 
certificate,  including  any  amended  location  certifi- 
cates, and  the  usual  memoranda  of  the  deeds  and 
other  instruments  appearing  of  record  in  his  office, 
and  should  be  brought  up  to  and  include  the  date  of 
application,  and  should  be  certified  to  by  the  Re- 
corder.— Rule  42. 

The  abstract  often  contains  a  copy  of  the  loca- 
tion certificate,  and  in  such  case  the  recorder's  cer- 
tificate should  be  varied  to  state  that  it  contains  a 
true  copy  thereof;  but  the  better  practice  is  to  mail 
with  the  application  papers  a  certified  copy  of  the 
location  certificate  (or  certificates  if  there  be  more 
than  one),  separately,  and  after  the  filing  of  the 
"application  papers"  but  during  the  period  of  pub- 
lication to  send  the  abstract  proper,  which  in  such 
case  will  contain  only  the  memorandum  of  the  loca- 
tion certificate  with  names,  dates,  etc.,  in  the  same 


APPLICATION   FOR   PATENT.  399 

manner  as  the  memoranda  of  the  separate  deeds. 
This  precaution  is  to  make  the  abstract  certainly 
include  the 'date  of  the  filing  of  the  application. 

When  the  applicant  for  patent  is  the  original 
locator  himself  (and  there  have  been  no  transfers  of 
title),  he  should  file  with  the  application  papers  a 
certified  copy  of  his  location  certificate,  with  his 
affidavit  that  he  has  disposed  of  no  interest  in  the 
claim,  or  during  the  period  of  publication  as  before 
advised,  should  forward  an  abstract  containing  a 
memorandum  of  such  location  certificate  certified  as 
follows : 
STATE  OF  COLORADO,  County  of  Teller:  ss. 

I,  Frank  P.  Mannix,  Clerk  and  ex-officio  Recorder  of 
said  County,  do  hereby  certify  that  the  foregoing  is  a  full, 
true  and  correct  abstract  of  the  title  to  the  Bear  lode  therein 
described,  as  the  same  appears  of  record  in  said  office,  and 
that  there  are  no  deeds  or  other  instruments  appearing  of 
record  purporting  to  convey  or  affect  the  same  except  the 
certificate  of  location  therein  referred  to. 

Witness  my  hand,  etc.,  as  a~bove. 

The  Abstract  Should  Show  Title  in  Applicant. 

— Rule  42.  If  it  show  title  in  several  co-owners,  all 
such  co-owners  should  join  as  applicants.  If  it  show 
that  there  were  co-owners  who  had  been  forfeited  out 
for  non-performance  of  annual  labor,  this  is  con- 
sidered equivalent  to  an  abstract  showing  transfer 
by  deed  from  them  to  the  applicant.  A  break  in  the 
chain  of  title  behind  a  relocation  made  in  the  usual 
form  to  take  up  abandoned  claims  may  be  disre- 
garded.— 10  L.  0.  119.  But  the  Department  will  take 
notice  of  a  void  Sheriff's  deed  or  other  break  in  the 
title  asserted  and  relied  on  by  the  applicant. — 21 
L.  D.  544.  Where  the  names  of  co-tenants  are  in- 
advertently omitted  in  the  application  they  have  been 
allowed  to  bo  supplied  and  the  patent  issued  to  all. 
—10  L.  O.  206;  but  this  is  irregular. 

O.      PROOF   OF   CITIZENSHIP. 

STATE  OF  COLORADO,  County  of  Teller:  ss. 

E.  H.  Cook,  being  first  duly  sworn  according  to  law,  de- 
poses and  says  that  he  is  the  applicant  for  patent  for  the 
Bear  Lode  Mining  Claim,  situate  in  Cripple  Creek  Mining 


400  APPLICATION   FOR   PATENT. 

District,  County  of  Teller,  State  of  Colorado  ;*  that  he  is  a 
native  born  citizen  of  the  United  States,  born  in  the  County 

of ,  State  of  New  York,  in  the  year , 

and  is  now  a  resident  of  Denver,  State  of  Colorado. 

E.  H.  COOK. 

Subscribed  and  sworn  to  before  me  this  15th  day  of 
December,  A.  D.  1902.  Henry  Moody, 

[SEAL.]  Notary  Public. 

When  the  applicant  is  not  a  native  citizen  the 
form  after  the  *  will  proceed: 

That  he  is  a  naturalized  citizen  of  the  United  States  ; 
took  out  his  final  naturalization  papers  in  the  Circuit  Court 
of  the  United  States  at  Denver,  Colorado,  on  the  first  day  of 
May,  1880,  and  is  now  a  resident  of  Kokomo,  State  of  Col- 
orado. 

If  the  applicant  has  not  taken  out  his  final  pa- 
pers, it  will  show,  as  required  by  Rule  68,  when, 
where  and  in  what  Court  he  took  out  his  first  pa- 
pers: 

That  he  declared  his  intention  of  becoming  a  citizen 
of  the  United  States  in  the  Circuit  Court  of  the  United 
States,  at  Denver,  Colorado,  on  the  first  day  of  May,  1899,  and 
is  now  a  resident  of  Cheyenne,  State  of  Wyoming. 

If  the  applicant  claims  under  his  father's  nat- 
uralization, it  will  proceed: 

That  he  is  a  naturalized  citizen  of  the  United  States, 
born  in  the  Republic  of  Peru,  and  that  he  came  to  the 
United  States  a  minor,  under  the  age  of  21  years,  and  has 
ever  since  resided  in  the  United  States,  and  that  his  father 
took  out  his  final  papers  and  became  a  naturalized  citizen 
of  the  United  States  during  the  minority  of  affiant,  whereby 
affiant  became  a  naturalized  citizen  under  the  terms  of  Sec- 
tion 2172  of  the  Revised  Statutes  of  the  United  States,  and 
is  now  a  resident  of  Aspen,  County  of  Pitkin,  State  of  Colo- 
rado. 

Serving  in  the  army  or  navy  does  not  complete 
citizenship  of  itself.  Soldiers  must  comply  with 
§  2166  and  sailors  with  §  2174  of  the  R.  S.  or  28 
Stat.  L.  p.  124. 

Where  there  are  several  applicants  each  makes 
his  own  affidavit  of  citizenship. 

Affidavit,  Where  Made. 

By  Act  of  April  26,  1882,  the  affidavit  of  citizen- 
ship, where  the  applicant  resides  outside  of  the  land 


APPLICATION   FOR   PATENT,  401 

district,  may  be  made  anywhere  in  the  United  States, 
before  any  notary  or  Clerk  of  Court  of  Record  where 
the  applicant  may  reside  or  happen  to  be  found. 

Proof  by  Two  Witnesses. 

When  the  affidavit  of  the  applicant  cannot  be 
procured  the  land  office  will  allow  proof  of  his  citi- 
zenship by  the  affidavits  of  two  disinterested  wit- 
nesses.— Rule  70. 

Citizenship  of  Corporation. 

A  corporation  must  file  a  copy  of  its  charter  or 
articles  of  association,  certified  to  by  the  Secretary 
of  iState  of  the  State  within  which  it  is  operating, 
whether  it  be  a  domestic  corporation  or  a  corpora- 
tion of  some  other  State  doing  business  in  that  State. 
— Rule  66;  27  L.  D.  351. 

Or  it  may  file  a  "Certificate  of  Incorporation" 
and  the  Land  Office  will  not  pass  on  the  point  that 
it  is  not  by  its  articles  a  corporation  which  could 
lawfully  take  title  to  mineral  lands.— 20  L.  D.  116;  22 
L.  D.  83. 

Entry  secured  by  fraudulently  suppressing  the 
fact  that  it  was  for  the  benefit  of  an  alien  corpora- 
tion will  be  cancelled  and  purchase  price  will  not 
be  refunded.— 20  L.  D.  379. 

Proof  of  Non-Abandonment. 

By  circular  of  the  General  Land  Office  of  March 
24,  1887,  8  L.  D.  505,  it  was  ruled  that  the  register 
should  require  upon  each  application  satisfactory 
proof  of  compliance  with  the  annual  labor  law;  but 
by  the  Revision  of  1901  such  proof  is  no  longer  re- 
quired and  the  question  is  left  by  the  -Department 
to  be  settled  by  adverse  claimants  in  the  courts. — 
Rule  55;  29  L.  D.  302,  401;  31  Id.  69.  But  a  delay 
to  make  entry  until  beyond  the  end  of  the  calendar 
year  after  publication,  Held  fatal  to  the  entry,  where 
relocation  for  failure  to  do  anual  labor  is  alleged  by 
protest.— 31  L.  D.  69. 


402  APPLICATION    FOR   PATENT. 

P.     PUBLISHER'S  CONTRACT. 

I,  the  undersigned,  publisher  and  proprietor  of  the 
Cripple  Creek  Star,,  a  weekly  newspaper  published  in  Cripple 
Creek,  Teller  County,  State  of  Colorado,  hereby  agree  to  pub- 
lish a  notice  dated  TJ.  S.  Land  Office,  Pueblo,  Colo.,  Decem- 
ber 15,  1902,  required  by  Act  of  Congress,  approved  May  10th, 
1872,  of  the  intention  of  E.  H.  Cook  to  apply  for  a  patent  for 
his  claim  on  the  Bear  Lode,  situate  in  Cripple  Creek  Mining 
District,  County  of  Teller,  State  aforesaid,  and  to  hold  the 
said  E.  H.  Cook  alone  responsible  for  the  amount  of  our  bill 
for  publishing  the  same. 

And  it  is  hereby  expressly  stipulated  and  agreed  that 
no  claim  shall  be  made  against  the  government  of  the 
United  States,  or  its  officers  or  agents,  for  such  publication. 

Witness  my  hand  this  16th  day  of  December,  A.  D.  1902. 
P.  H.  Knowlton,  Publisher. 

In  What  Newspaper. 

The  notice  must  be  published  in  a  newspaper 
to  be  by  the  Register  designated  as  published  near- 
est to  the  claim.— R.  8.  §  2325;  11,  L.  D.  138.  When 
there  are  two  or  more  in  the  nearest  town,  either 
may  be  designated.— Cameron  v.  Seaman,  13  M.  R. 
584;  2  L.  D.  758,  The  practice  of  the  Register,  where 
two  or  more  local  papers  in  the  same  town  are  pub- 
lished, is  to  designate  that  one  which  the  attorney 
may  suggest.  The  distance  is  to  be  calculated  not 
by  an  air  line,  but  by  the  most  usually  traveled  route. 
The  language  of  the  Act  allows  much  discretion  in 
the  designation  of  the  newspaper. — 17  L.  D.  560;  26 
Id.  145. 

The  notice  must  be  continued  in  the  same  paper 
and  cannot  be  shifted  from  the  daily  to  the  weekly 
edition.— 3  L.  0.  18. 

What  Constitutes  a  Newspaper. 

It  must  be  a  reputable  newspaper  of  general 
circulation.— 2  L.  D.  205;  758.  The  Register  has  a 
discretion  in  deciding  what  constitutes  such  a  news- 
paper.—8  L.  0.  156;  3  L.  0.  36;  10  L.  D.  655;  26  Id. 
14o. 

Q.      PUBLICATION  NOTICE. 

This  is  verbatim  the  same  as  "K"  and  amounts 
to  a  fourth  copy  of  "K,"  except  that  it  is  not  signed 
by  the  applicant  but  is  forwarded  in  blank  to  the 


APPLICATION   FOR   PATENT.  403 

land  office  where  it  receives  the  application  number, 
is  signed  by  the  Register  and  returned  by  him  to 
the  attorney  for  claimant  or  direct  to  the  printer. 

It  usually  contains  at  the  foot  the  dates  of  the 
first  and  last  publication;  but  erroneous  statement 
of  last  date  will  not  excuse  failure  to  file  adverse 
within  statutory  period. — 25  L.  D.  550. 

Manner  and  Period  of  Publication. 

The  notice  "Q"  must  be  published  for  61  days 
in  a  daily,  or  nine  consecutive  times  in  a  weekly 
paper — 29  L.  D.  230;  Rule  45;  and  while  the  notice 
is  going  through  its  newspaper  publication,  it  also 
stands  posted  on  the  claim,  and  tacked  to  the  bulletin 
of  the  land  office.  Each  of  these  methods  of  publi- 
cation is  mandatory  and  essential.  See  p.  437. 

First  Set  or  "Application"  Papers. 

The  above  mentioned  papers,  constituting  the 
following  list,  to  wit: 

F. — The  final  plat — one  copy. 

H. — The  approved  field  notes. 

K. — The  copy  intended  for  posting  in  land  office. 

K. — Second  copy  with  "L"  proof  of  posting  at- 
tached. 

M. — Application  for  patent. 

N.— Abstract  of  title. 

O. — Proof  of  citizenship. 

P. — Publisher's  agreement. 

Q. — Publication  notice — which  complete  the  first 
set  of  papers  commonly  called  the  "application  pa- 
pers," are  all  forwarded  at  one  time  by  the  attorney 
to  the  local  land  office. 

Upon  receipt  of  the  application  papers,  accom- 
panied by  the  filing  fee  of  ten  dollars,  the  register 
gives  the  papers  an  application  number,  makes  a  rec- 
ord of  the  application  in  the  nature  of  an  index, 
attests  the  posting  of  the  notice  "K"  in  his  office, 
affixing  the  date,  and  returns  to  the  attorney  for 
claimant  the  notice  for  publication  "Q"  headed  with 
the  application  number,  or  sends  it  direct  to  the 


404  APPLICATION    FOR    PATENTS 

proper  paper  for  publication.  The  return  of  the  pub- 
lication notice  to  the  attorney  or  paper  is  an  implied 
approval  of  the  publisher's  contract  and  a  sufficient 
designation  of  that  paper. 

RECAPITULATION. 

It  may  be  convenient  to  review  the  proceedings 
at  this  point. 

The  papers  A  to  I,  inclusive,  have  performed 
their  office. 

A,  the   request  for  survey;    C,   the  preliminary 
plat;  D,  the  field  notes,  and  P,  the  final  plat,  remain 
with  the  Surveyor  General. 

B,  the  order  for  survey,  remains  in  the  hands  of 
the  deputy,  being  his  voucher  against  the  applicant 
for  work  done  under  it. 

E,  G,  and  I  are  mere  certificates  endorsed  on 
other  papers. 

The  transcript  *H  (the  approved  field  notes), 
has  been  attached  to  the  application  M,  and  both 
mailed  to  the  local  land  office. 

One  copy  of  the  plat  F  has  been  forwarded  by 
the  Surveyor  General  to  the  local  land  office  to  be 
kept  on  file;  one  copy  has  been  posted  on  the  claim, 
and  one  copy  forwarded  to  the  local  land  office  as 
one  of  the  application  papers. 

One  of  the  notices  K  has  been  posted  on  the 
claim;  one  has  been  attached  to  the  proof  of  post- 
ing; one  has  been  posted  in  the  land  office,  and  one, 
Q,  remains  to  be  published  or  is  being  published. 

L,  the  proof  of  posting;  M,  the  application;  and 
P,  the  publisher's  agreement,  have  been  filefl  in  the 
land  office.  , 

N,  the  abstract,  and  O,  the  proof  of  citizenship, 
have  been  filed,  or  if  not,  may  be  filed  at  any  time 
pending  the  publication. 

The  Second  Set  or  "Final  Entry"  Papers  which  re- 
main to  be  filed  after  the  publication  is  complete,  con- 
sist of: 


APPLICATION   FOR   PATENT.  405 

R. — Proof  of  continuous  posting. 

S. — Proof  of  publication. 

T. — Proof  of  sums  paid. 

U. — Application  to  purchase,  to   wit: 

When  the  period  of  publication  is  complete, 
proof  of  the  notice  having  remained  on  the  claim  and 
of  the  publication  are  made  as  follows: 

R.      PROOF   THAT   PLAT   AND   NOTICE   REMAINED   POSTED    ON 
CLAIM   DURING   TIME   OF   PUBLICATION. 

STATE  OF  COLORADO,  County  of  Teller:  ss. 

E.  H.  Cook,  being  first  duly  sworn  according  to  law, 
deposes  and  says,  that  he  is  the  claimant  of  the  Bear  lode 
mining  claim,  Cripple  Creek  Mining  District,  Teller  County, 
State  of  Colorado,  the  official  plat  of  which  premises  to- 
gether with  the  notice  of  his  intention  to  apply  for  a  pat- 
ent therefor  was  posted  thereon,  on  the  15th  day  of  Decem- 
ber, A.  D.  1902,  as  fully  set  forth  and  described  in  the  affi- 
davit of  John  C.  Clark  and  B.  F.  Pin-son f  dated  the  15th  day 
of  December,  A.  D.  1902,  which  affidavit  was  duly  filed  in 
the  office  of  the  register,  at  Pueblo,  in  this  State  ;  and  that 
the  plat  and  notice  so  mentioned  and  described,  remained 
continuously  and  conspicuously  posted  upon  said  mining 
claim  from  the  15th  day  of  December ,  A.  D.  1902,  until  and 
including  the  19th  day  of  February,  A.  D.  1903,  including  the 
sixty  days'  period  during  which  notice  of  said  application 
for  patent  was  published  in  the  newspaper.  j^  jj  COOK. 

Subscribed  and  sworn  to  before  me,  this  20th  day  of 
February,  A.  D.  1903,  and  I  hereby  certify  that  the  foregoing 
affidavit  was  read  to  the  said  E.  H.  Cook,  previous  to  his 
name  being  subscribed  thereto.  D.  C.  Crawford, 

[SEAL.]  Notary  Public. 

This  affidavit  of  continuous  posting  the  claim- 
ant may  make  from  information  derived  from  hear- 
say.— 9  L.  D.  503. 

S.       CERTIFICATE   OF  PUBLICATION. 

I,  P.  H.  Knowlton,  do  certify  that  I  am 
Publisher  of  the  Cripple  Creek  Star,  a 
weekly  newspaper  published  in  Cripple 
Creek,  in  the  County  of  Teller,  and  State 


(Copy  of 
publication      n  o 


tice  cut  from 


of  Colorado,  and  that  the  annexed  notice 
was  published  in  said  paper  once  each  and 


™cf0ri  every   week  for    nine    consecutive    weeks, 
50  the    first    publication    being    on    the    18th 
day  of  December,  A.  D.  1902,  and  the  last 
publication  being  on  the  12th  day  of  Feb- 
ruary, A.  D.  1903.         p   H   KNQWLTON. 


406  APPLICATION    FOR    PATENT. 


The  publisher's  re- 
ceipted bill  is  com- 
monly attached  to  this 


Subscribed  and  sworn  to  before 
me  this  20th  day  of  February,  A.  D. 
1903.  Henry  Moody, 

[SEAL.]  Notary  Public. 


blank. 

Together  with  these  proofs  of  publication  and 
posting,  the  claimant  forwards,  under  one  of  the  in- 
structions of  the  department,  the  following: 

T.       PROOF    OF    SUMS    PAID. 

STATE  OF  COLORADO,,  County  of  Teller:  ss. 

E.  H.  Cook,  having  been  first  duly  sworn  according  to 
law,  deposes  and  says  that  he  is  a  citizen  of  the  United 
States,  over  the  age  of  twenty-one  years  ;  that  he  is  the 
applicant  for  patent  to  1500  feet  upon  the  Bear  Lode,  in 
Cripple  Creek  Mining  District,  Teller  County,  Colorado ; 
that  in  the  prosecution  of  such  application  he  has  paid  the 
following  sums  of  money,  viz.  : 

For  office  work  in  the  Surveyor  General's  office $  30 

To  E.  E.  Chase,   Deputy    Surveyor,    for    surveying  and 

platting    50 

To  Register  and  Receiver,  for  filing  application  in  Land 

Office 10 

To  the  Cripple  Creek  tftar,  for  publishing  notice  of  ap- 
plication  V 20 

To  the  Receiver  of  the  local  Land  Office,  for  land 45 


$155 
E.  H.  COOK. 

Subscribed  and  sworn  to  before  me  this  20th  day  of 
February,  A.  D.  1903.  7).  C.  Crawford, 

[SEAL.]  Notary  Public. 

These  are  the  official  costs  only;  it  does  not  in- 
clude attorney's  fees,  notary's  charges,  nor  cost  of 
abstract.  The  total  expense  of  patenting  one  lode, 
without  mill  site,  varies  from  $150  to  $250. 

The  filing  of  this  paper,  T,  completes  the  pre- 
requisites of  entry  and  payment  except  the  formal 
application  to  purchase,  U,  and  the  register's  proofs, 
V  and  W. 

U.       APPLICATION    TO   PURCHASE. 

To  the  Register  and  Receiver  United  States  Land  Office,  at 

Pueblo,  Colorado. 

The  undersigned,  claimant  under  the  provisions  of  the 
Revised  Statutes  of  the  United  States,  Chapter  VI,  Title  32, 
and  legislation  supplemental  thereto,  hereby  applies  to  pur- 


APPLICATION   FOR   PATENT.  407 

chase  that  Mining  Claim  known  as  the  Bear  lode,  located  in 
the  west  half  of  section  22,  township  No.  15,  S.  Range  No. 
09,  west  of  the  sixth  principal  meridian,  designated  as  lot 
No.  11310,  said  lot  No.  11310  extending  1,500  feet  in  length 
along  said  Bear  vein  or  lode,  but  expressly  excepting  and 
excluding  from  this  application  all  that  portion  of  the  ground 
embraced  in  mining  claim  or  survey  designated  as  lot  No. 
2560,  the  Carnarvon  lode,  and  the  claim  of  Neals  Matt  son, 
on  the  Gottenburg  lode,  and  also  all  that  portion  of  any  vein 
or  lode,  the  top  or  apex  of  which  lies  inside  of  said  excluded 
ground,  said  lode  mining-  claim  embracing  8.011  acres  in  the 
Cripple  Creek  Mining  District,  in  the  County  of  Teller,  and 
State  of  Colorado,  as  shown  by  the  survey  thereof,  and 
hereby  agrees  to  pay  therefor  forty-five  dollars,  being  the 
legal  price  thereof. 

Dated  Pueblo,  February  W,  1903.  E.  H.  COOK. 

I,  John  R.  Gordon,  Register  of  the  land  office  at  Pueblo, 
Colorado,  do  hereby  certify  that  the  aforesaid  mining  claim 
or  lot  No.  11310  as  applied  for  above,  is  subject  to  entry 
by  the  above  named  applicant ;  the  area  of  said  lode  mining 
claim  being  8.011  acres  and  the  legal  price  thereof  forty-five 
dollars. 

February  20,  1903.  JOHN  R.  GORDON,, 

U  does  not  need  to  be  verified.  Register. 

Excluded  Areas. 

The  notice  and  the  application  must  show  what 
areas  are  excluded  and  if  the  entry  be  of  any  such 
excluded  areas  a  republication  and  posting  will  be 
ordered.— 22  L.  D.  Ill;  28  Id.  436. 

Entry  may  embrace  land  excluded  from  applica- 
tion, but  which,  on  adverse  proceedings,  was  awarded 
to  applicant. — 29  L.  D.  71.  May  be  amended  to  in- 
clude a  tract  at  first  excluded  on  account  of  defective 
title.— 29  Id.  287.  Will  not  be  allowed  for  land  em- 
braced in  a  prior  subsisting  entry. — 29  Id.  62. 

Entry — Cancellation — Relinquishment. 

Entry  cancelled  without  notice  must  be  rein- 
stated.— 23  L.  D.  113;  31  Id.  51.  Cancellation  does 
not  subject  claim  to  relocation. — 23  Id.  113;  but  repub- 
lication and  posting  is  required. — 29  Id.  470.  Reinstate- 
ment will  not  be  made  when  entryman  has  filed  ad- 
verse against  subsequent  application. — 26  Id.  60S. 
Entry  may  stand  on  proper  proof  where  title  is  sub- 
sequently acquired. — 29  Id.  208.  Entry  allowed  by 
mistake  pending  adverse,  will  be  cancelled. — SO  Id. 


408  APPLICATION    FOR   PATENT. 

298.  A  relinquishment  during  publication  and  be- 
fore adverse  claim  is  filed  runs  to  the  government 
though  in  terms  made  for  the  benefit  of  another 
claimant  and  the  ground  relinquished  cannot  there- 
after be  made  the  basis  of  an  adverse. — 27  Id.  369. 

Register's  Proof  Completes  Application. 

Upon  receipt  of  the  final  entry  papers  (R — U) 
accompanied  by  the  purchase  money  (all  other  pa- 
pers being  regular)  the  Register  makes  his  certificate 
that  the  notice  "K"  remained  posted  on  his  bulletin 
during  the  period  that  its  duplicates  were  being 
posted  on  the  claim  and  published,  and  makes  his 
final  certificate  of  entry. 

V.     REGISTER'S    CERTIFICATE    OF    POSTING    NOTICE    FOR 

SIXTY    DAYS. 

[Attached  to  Bulletin  copy  of  K.] 

UNITED  STATES  LAND  OFFICE,     ) 

At  Pueblo,  Colorado. 
February  21,  1903.  ) 

I  hereby  certify  that  the  official  plat  of  the  Bear  lode, 
designated  by  the  surveyor  general  as  lot  No.  11310  was 
filed  in  this  office  on  the  16th  day  of  December,  A.  D.  1902, 
and  that  a  notice,  of  which  the  attached  notice  is  a  copy,  of 
the  intention  of  E.  H.  Cook  to  apply  for  a  patent  for  the 
mining  claim  or  premises  embraced  by  said  plat,  and 'de- 
scribed in  the  field  notes  of  survey  thereof  filed  in  said  ap- 
plication, was  posted  conspicuously  in  this  office  on  the  16th 
day  of  December,  1902,  and  remained  so  posted  until 
the  nth  day  of  February,  1903,  being  the  full  period  of  sixty 
consecutive  days  during  the  period  of  publication  as  re- 
quired by  law ;  and  that  said  plat  remained  in  this  office  dur- 
ing that  time  subject  to  examination  and  that  no  adverse 
claim  thereto  has  been  filed.  JOHN  R.  GORDON, 

Register. 

It  is  important  that  this  bulletin  notice,  "K," 
should  have  been  properly  posted.  The  land  office 
holds  that  it  is  essential  that  the  three  notices,  to 
wit:  by  newspaper,  by  posting  and  by  the  bulletin 
should  be  concurrent,  and  in  a  case  where  the  bulle- 
tin was  not  posted  till  the  third  day  of  advertise- 
ment they  allowed  an  adverse  on  the  63rd  day,  hold- 
ing that  the  double  and  contemporaneous  publica- 
tion was  not  until  such  day  complete.  The  bulletin 


APPLICATION    FOR    PATENT.  400 

must  be  posted  60  days,  and  the  newspaper  notice 
does  not  begin  to  run  until  the  bulletin  is  posted. — 
5  L.  D.  510;  17  L.  D.  282.  If  any  one  of  the  three 
notices  is  insufficient  they  are  all  rendered  value- 
less.—29  L.  D.  467. 

W.    REGISTER'S  FINAL  CERTIFICATE  OF  ENTRY. 

Mineral  Entry  No.  2,000.  UNITED  STATES  LAND  OFFICE,  ) 
Lot  No.  11.310.  At  Pueblo,  Colorado. 

February  21,  1903.  ) 

It  is  hereby  certified  that  in  pursuance  of  the  pro- 
visions of  the  Revised  Statutes  of  the  United  States,  Chap- 
ter VI,  Title  32,  and  legislation  supplemental  thereto,  E.  H. 
Cook,  whose  postoffice  address  is  Denver,  Colorado,  on  this 
day  purchased  that  mining  claim  known  as  the  Bear  lode,  in 
the  west  %  of  section  22,  in  township  No.  15,  S.  Range  No. 
69  W.  of  the  sixth  principal  meridian,  designated  as  lot  No. 
11,310,  said  lot  No.  11,310  extending  1,500  feet  in  length 
along  said  Bear  vein  or  lode,  expressly  excepting  and  exclud- 
ing from  said  purchase  all  that  portion  of  the  ground  em- 
braced in  mining  claim  or  survey  designated  as  lot  No.  2560, 
Carnarvon  lode ;  also  the  claim  of  Neals  Mattson,  on  the  Got- 
tenburg  lode,  and  also  all  that  portion  of  any  vein  or  lode, 
the  top  or  apex  of  which  lies  inside  of  said  excluded  ground ; 
sa'id  lode  mining  claim,  as  entered,  embracing  8.011  acres 
in  the  Cripple  Creek  mining  district  in  the  County  of  Teller 
and  State  of  Colorado,  as  shown  by  the  plat  and  field  notes 
of  survey  thereof,  for  which  the  said  party  first  above 
named  this  day  made  payment  to  the  receiver  in  full, 
amounting  to  the  sum  of  forty-five  dollars. 

Now,  therefore,  be  it  known  that  upon  the  presentation 
of  this  certificate  to  the  Commissioner  of  the  General  Land 
Oflice,  together  with  the  plat  and  field  notes  of  survey  of 
said  claim  and  the  proofs  required  by  law,  a  patent  shall 
issue  thereupon  to  the  said  E.  H.  Cook  if  all  be  found  regu- 
lar. JOHN  R.  GORDON, 

Register. 

Receiver's  Receipt. 

At  the  same  time  the  receiver  issues  in  dupli- 
cate the  receiver's  receipt  and  files  the  original  with 
the  papers,  and  delivers  or  sends  the  duplicate  to 
the  claimant,  and  all  the  preliminary  proceedings 
are  now  complete.  This  receiver's  receipt  should  be 
kept  by  the  claimant  until  notice  from  the  local  land 
office  that  patent  has  arrived  at  such  local  land  of- 
fice, as  its  surrender  is  required  before  the  patent  is 
delivered.  If  mislaid,  proof  of  loss  must  be  made. 


410  APPLICATION    FOR    PATENT. 

X.      AFFIDAVIT   OF  LOST  RECEIVER'S   RECEIPT. 

STATE  OF  COLORADO,  County  of  Teller:  ss. 

In  the  Pueblo  Land  District,  Colorado. 
Before  me,  the  subscriber,  register  of  said  land  office, 
personally  appeared  John  Best,  who,  being  duly  sworn,  saith 
that  he  is  the*  applicant  for  patent  on  the  Brelau  lode  min- 
ing claim  survey  lot  No.  7000  in  Cripple  Creek  mining  dis- 
trict, County  of  Teller  f  State  of  Colorado,  and  the  same 
person  who  as  such  applicant  made  entry  of  said  survey  lot 
in  the  said  land  office  on  or  about  the  first  day  of  June,  A. 
D.  1902.  That  on  the  date  of  said  entry  he  received  the  du- 
plicate receiver's  receipt  therefor.  That  said  duplicate  re- 
ceiver's receipt  is  lost  or  mislaid.  That  deponent  has  made 
diligent  search  among  his  papers  and  can  not  find  the  same, 
and  can  not  therefore  surrender  the  same.  That  he  never 
assigned  or  purported  to  assign  said  receiver's  receipt  and 
still  remains  the  owner  and  in  possession  of  the  land 
therein  described  and  is  the  party  entitled  to  receive  the 
patent  therefor.*  Wherefore  affiant  asks  that  the  patent 
to  said  survey  lot  be  delivered  to  him  without  the  surrender 
of  said  receiver's  receipt  upon  this  his  affidavit  of  loss. 

JOHN  BEST. 

Sworn  and  subscribed  to  before  me  this  eighth  day  of 
January,  A.  D.  1903.  John  R.  Gordon, 

Register. 

If  the  title  has  been  transferred  insert  between 
the  *  * 

"Owner  by  purchase  of  the  Brelau  lode,  etc.  (descrip- 
tion). That  he  purchased  the  same  since  the  same  was  en- 
tered for  patent  by  deed  from  the  party  who  made  the  entry. 
That  he  never  received  the  duplicate  receiver's  receipt  from 
his  vendor,  and  does  not  know  where  the  same  can  be  found. 
That  he  has  made  diligent  inquiry  of  the  attorney  and  sur- 
veyor employed  in  the  application  for  patent  to  said  lode, 
who  declare  that  they  never  had  the  same  in  their  possession, 
and  that  the  whereabouts  of  affiant's  vendor  are  unknown 
to  affiant."  Wherefore,  etc. 

After  Entry. 

All  proceedings  after  entry  are  ministerial.  The 
papers  in  the  local  land  office,  except  the  copy  of 
plat  F,  'furnished  by  the  surveyor  general,  are  for- 
warded to  the  General  Land  Office  at  Washington 
and  the  patent  issues  in  due  course  usually  arriving 
within  one  year,  the  department  being  behind  in  its 
office  work;  but  this  is  upon  the  supposition  that 
all  the  preliminary  steps  have  been  regular,  and  that 
the  land  was  in  fact  open  to  entry — if  material  errors 


APPLICATION   FOR   PATENT.  411 

or  defects  are  discovered  after  the  receiver's  receipt 
issues,  it  may  be,  and  often  is,  recalled  and  cancelled, 
and  if  land  entered  as  agricultural  is  shown  to  be 
mineral  at  any  time  before  patent  issues,  the  same 
result  follows.— 7  L.  0.  23. 

Corrections  and  Additional  Proofs. 

The  entire  series  of  papers  are  reviewed  at 
Washington  and  if  irregularities,  such  as  errors  in 
survey,  insufficient  proof  of  improvements,  errors  in 
affidavits,  etc.,  are  discovered,  the  local  land  office 
is  notified  from  the  General  Land  Office,  and  (unless 
the  mistake  is  a  fatal  one)  the  claimant  or  his  at- 
torney is,  by  letter  from  the  local  land  office,  notified 
to  supply  the  defect  by  further  affidavit  or  certificate, 
as  the  case  may  be. 

Government  Price  $5  Per  Acre. 

The  application  papers  (p.  403)  are  accompanied 
by  the  money  to  be  paid  for  the  land,  being  $5  for 
each  acre  or  fractional  part  of  an  acre  of  the  surface 
ground.  The  extreme  limit  of  claim  in  Colorado  be- 
ing 1,500  feet  long  by  300  feet  Abroad,  such  claim 
contains  10  and  33-100  acres;  the  fractional  acre  be- 
ing paid  for  as  one  acre,  makes  the  claim  equivalent 
to  11  acres.  The  amount  paid  will  therefore  vary 
between  $5  and  $55  for  a  single  lode  location  with  no 
mill  site.  The  price  of  placer  ground  is  $2.50  per 
acre,  or  fraction  of  an  acre. 

Acreage  of  Lode  Claims. 

In  computing  this  acreage  all  interfering  surveys 
which  have  been  deducted,  are  excluded.  The  pay- 
ment is  based  on  the  amount  of  claimed  surface 
ground  covered  by  the  survey  and  not  excluded  in 
favor  of  prior  applications. 

Claim  1500  x  600  feet  contains  20.66  acres. 
1500  x  300     "  10.33     " 

1500  x  150     "  5.16     " 

3000  x     50     "  3.44     " 

1400  x     50     "  1.60     " 

1600  x     50     "  "  1.83     " 


412  APPLICATION    FOR   PATENT. 

Affidavits— Where  Made. 

All  affidavits  made  in  support  of  the  application 
must  be  made  within  the  land  district.  An  exception 
to  this  is  the  publisher's  affidavit  (S)  where  the  pa- 
per "nearest  the  claim"  happens  to  be  a  newspaper 
in  another  land  district.  Another  exception  is  the 
affidavit  of  citizenship.  Adverse  claim  may  be  veri- 
fied in  certain  cases  beyond  the  land  district. — See 
page  468. 

It  has  been  ruled  that  any  officer,  as  for  instance 
the  Clerk  of  the  U.  S.  Court,  whose  jurisdiction 
extends  over  the  territory  of  the  land  district,  may 
administer  the  oath  anywhere  within  his  jurisdic- 
tion.—3  L.  0.  195. 

Before  What  Officer. 

They  may  be  made  before  a  notary  public  or  any 
officer  authorized  to  administer  oaths.  Among  such 
officers  are  the  register  and  receiver  of  the  proper 
district.  Where  allowed  outside  the  district  they 
should  be  taken  before  a  notary  or  the  clerk  of  a 
court  of  record.  In  all  cases  the  official  seal  should 
be  attached.— Rule  69. 

Where  the  Application  Is  Joint,  any  one  co- 
owner  may  make  all  the  affidavits  required,  on  behalf 
of  his  co-owners  as  well  as  on  his  own  behalf,  except 
the  affidavit  of  citizenship. — See  p.  400. 

When  a  claim  is  owned  in  common,  it  is  some- 
times convenient  to  have  a  quit-claim  executed  by 
the  others  to  one  of  their  number,  placing  the  title 
for  the  time  being,  in  his  name,  the  grantors  secur- 
ing themselves  by  title  bond  or  otherwise. 

Application  by  Agent. 

"Provided,  That  where  the  claimant  for  a  patent  is  not 
a  resident  of  or  within  the  land  district  wherein  the  vein, 
lode,  ledge,  or  deposit  sought  to  be  patented  is  located,  the 
application  for  patent  and  the  affidavits  required  to  be  made 
in  this  section  by  the  claimant  for  such  patent  may  be  made 
by  his,  her,  or  its  authorized  agent,  where  said  agent  is  con- 
versant with  the  facts  sought  to  be  established  by  said  affi- 
davits :  *  *  *  — A.  C.  Jan.  22,  1880. 


APPLICATION   FOR   PATENT.  413 

It  does  not  seem  that  under  the  above  Act  a 
resident  owner  can  apply  at  all  by  agent — unless  at 
least  temporarily  absent. — 8  L.  D.  223.  And  the  fact 
of  absence  should  be  recited  in  the  power  of  attorney. 
In  other  words,  he  cannot  delegate  the  power  while 
he  is  present,  by  mere  caprice  or  desire  to  avoid 
personal  attention  to  the  matter. 

Where  an  application  is  by  agency  there  must  be 
a  written  power  of  attorney,  the  original  of  which 
is  filed  in  the  Land  Office. 

•Y.      FORM  OF  POWER  OF  ATTORNEY. 
KNOW    ALL    MEN    BY    THESE      PRESENTS,      That      I,      John 

Glenn,  of  Baltimore,  State  of  Maryland,  a  citizen  of  the 
United  States,  do  hereby  constitute  and  appoint  J.  J.  Vivian, 
of  Idaho  Springs,  County  of  Clear  Creek,  State  of  Colorado, 
my  attorney-in-fact,  for  me  and  in  my  name,  to  make 
application  for  patent  of  the  United  States,  in  the  proper 
land  office,  upon  the  Dragon  lode  mining  claim,  1,500  feet 
in  length  by  150  feet  in  width,  situate  on  Republican  Moun- 
tain in  Griffith  mining  district,  County  of  Clear  Creek,  State 
of  Colorado,  and  to  make  or  cause  to  be  made,  any  and 
all  surveys,  relocations,  affidavits,  and  all  necessary  papers 
which  may  be  required  in  the  prosecution  of  such  application, 
or  to  perfect  or  protect  the  title  thereto,  and  to  do  all  acts 
and  things  in  and  about  the  premises  which  I  myself,  if 
present,  could  do,  until  patent  is  finally  delivered.  Also  in 
case  of  adverse  claim,  I  authorize  him  to  employ  counsel 
and  take  all  measures  necessary  to  defend  against  said  ad- 
verse claim  or  suit  in  support  thereof,  either  in  the  land 
office  or  in  judicial  proceedings,  and  in  such  judicial  proceed- 
ings, to  execute  any  bonds  or  other  papers,  and  verify  all 
proceedings,  to  and  including  appeal  or  writ  of  error. 

Witness  my  hand  and  seal  this  third  day  of  February, 
A.  D.  1903.  JOHN  GLENN.  [SEAL.] 

Acknowledge  according  to  form  on  page  2^2. 

The  deputy  surveyor  cannot  accept  such  power 
nor  act  directly  or  indirectly  as  agent. — Rule  93. 

In  Each  Affidavit  Signed  by  Agent  should  be  in- 
serted, by  way  of  precaution,  the  following  clause: 

"Affiant  further  saith  that  the  said  claimant  is  not  a 
resident  in  the  land  district  in  which  said  claim  is  situate, 
but  resides  at  Tallahassee,  State  of  Florida,  and  that  affi- 
ant is  the  duiy  authorized  agent  of  said  claimant,  and  is 
conversant  with  the  facts  sought  to  be  established  by  snirl 
affidavit." 


414  APPLICATION    FOR    PATENT. 

Where  a  Corporation  Applies  all  papers  are 
signed  by  the  president,  or  other  officer  designated 
as  stated  in  the  next  paragraph;  but  more  usually 
(and  advisably),  it  executes  the  form  Y  to  some  resi- 
dent person  or  agent.— See  p.  401. 

Where  it  does  not  adopt  the  latter  plan  the  land 
office  practice  requires  proof  that  the  officer  purport- 
ing to  act  for  the  company  was  authorized  to  make 
the  application.  Such  proof  may  consist  of  a  copy  of 
the  resolution  of  the  board  of  directors  instructing 
some  designated  officer  to  apply  for  patent  to  the 
claim  or  claims  mentioned,  certified  by  the  secretary, 
under  the  corporate  seal. 

Mill  Site  Application. 

Where  a  mill  site  is  applied  for  separately  it 
must  be  upon  land  occupied  by  mill  or  reduction 
works  (p.  216).  In  such  case  the  forms  herein 
given  are  sufficient,  changing  the  word  lode  to  mill 
site,  and  adding  the  two  forms  next  following.  The 
price  per  acre  is  also  the  same  (p.  212).  The  appli- 
cations for  mill  sites  alone  are  rare,  they  being  usu- 
ally applied  for  in  connection  with  a  lode. 

But  the  Land  Office  has  ruled  that  the  owner  of 
a  lode  already  gone  to  patent,  who  then  held  or 
afterwards  secured  title  to  a  mill  site  which  he  uses 
as  appurtenant  to  his  mine,  may  apply  for  a  patent 
to  the  mill  site  later  by  independent  application, 
upon  showing  the  use  of  the  mill  site  in  connection 
with  the  lode,  the  same  as  if  he  had  originally  joined 
both  in  one  application.— 28  L.  D.  1/96. 

Z.      NON-MINERAL  AFFIDAVIT. 

STATE  OF  COLORADO.  County  of  Clear  Creek:  ss. 

Clarence  Jarbeau  and  Benj.  C.  Catren,  each  of  law- 
ful age  and  residents  of  Georgetown,  in  said  County,  being 
first  duly  sworn,  each  for  himself,  and  not  one  for  the  other, 
saith :  That  he  is  a  citizen  of  the  United  States ;  that  he 
is  well  acquainted  with  the  Annie  Boyd  mill  site  claim  of 
John  A.  Emery,  situate  in  Queens  mining  district,  in  said 
County,  upon  which  said  John  A.  Emery  has  applied  for  pat- 
ent of  the  United  States,  and  knows  the  character  of  said 
described  land,  havinng  frequently  been  actually  upon  the 


APPLICATION   FOR   PATENT.  415 

same ;  that  his  knowledge  of  the  land  is  such  as  to  enable 
him  to  testify  understandingly  with  regard  thereto ;  that 
there  is  not  to  his  knowledge  within  the  limits  thereof,  any 
vein  or  lode  of  quartz  or  other  rock  in  place,  bearing  gold, 
silver,  cinnabar,  lead,  tin  or  copper,  or  any  placer,  cement, 
or  other  valuable  mineral  deposits,  or  any  deposit  of  coal ; 
that  the  land  contains  no  salt  spring,  or  deposits  of  salt 
in  any  form  sufficient  to  render  it  chiefly  valuable  therefor  ; 
that  no  portion  of  said  land  is  claimed  for  mining  purposes 
under  the  local  customs  or  rules  of  miners  or  otherwise  ;  that 
no  portion  of  said  land  is  worked  for  minerals  during  any 
part  of  the  year  by  any  person  or  persons  ;  that  said  land 
is  essentially  non-mineral  land,  and  that  he  has  no  inter- 
est whatever  in  said  claim,  or  in  said  application  for  patent. 
|  Clarence  Jarbeau. 

Verification  as  in  form  BB.  Benj.  C.  Catren. 

The  claimant  is  not  required  under  the  rules  as 
amended,  to  file  his  own  affidavit  to  the  same  effect. 
— Rule  65. 

Where  a  mill  site  is  applied  for  in  connection 
with  a  lode  a  second  affidavit  substantially  according 
to  the  following  form  is  required. — 13  L.  0.  159. 

A  A.      PROOF    OF    MILL    SITE   USED   FOB    MINING     (OB    MILL- 
ING)   PUBPOSES. 

STATE  OF  COLORADO,  County  of  Garfleld:  ss. 

Before  me,  the  subscriber,  a  notary  public  in  and  for  • 
said  County,  personally  appeared  C.  N.  Greig  (claimant),  and 
Harry  Evans  and  James  W.  Ross  (witnesses),  who  being 
duly  sworn  each  for  himself  and  not  one  for  the  other,  saith 
that  he  is  a  citizen  of  the  United  States  and  resides  in  said 
County.  That  he  is  familiar  with  the  Oagool  mill  site,  sur- 
vey lot  No.  7666  B,  for  which  the  said  C.  N.  Greig  has  ap- 
plied for  patent  in  the  United  States  land  office  at  Glen- 
wood  Springs^  Colorado.  '  That  the  ground  embraced  in  said 
survey  is  used  or  occupied  by  said  claimant  for  mining  pur- 
poses, to  wit:  as  a  dump  for  the  Quartermain  lode;  and 
contains  an  ore  house  used  in  the  working  of  said  lode;  also 
a  boarding  house  used  by  miners  engaged  in  working  said 
lode;  also  a  tramway  and  Cornish  jig  used  in  operating  said 
lode  (etc.,  as  the  case  may  be). 

And  the  said  Harry  Evans  and  James  W.  Ross,  sever- 
ally, say  that  they  have  no  interest  whatever  in  said  mill 
site  or  in  the  application  for  patent  therefor. 

G.  N.  Greig. 

Verification  as  in  form  BB.  Harry  Evans. 

James   W.   Ross. 

The  improvements  must  be  in  the  nature  of 
mills,  flumes,  ditches,  or  other  things  incidental  to 


416  APPLICATION   FOR   PATENT. 

milling  or  mining.  Buildings  and  roads  not  used 
for  such  purposes  cannot  be  considered;  otherwise  if 
they  are  so  used.  Trails  off  the  claim,  used  for  car- 
rying ore,  have  been  accepted  as  part  of  the  improve- 
ments.— 6  L.  D.  220.  See  p.  217. 

It  is  generally  advisable  to  apply  for  a  mill  site 
in  connection  with  a  lode  claim;  and  in  applying  for 
a  lode  patent  a  mill  site  can  be  included  and  surface 
for  building  purposes'  readily  acquired,  at  a  cost  of 
$50  less  than  if  separate  applications  are  made.  See 
pages  212,  217. 

The  lode  is  always  distinguished  as  survey  lot 
"A" — the  mill  site  by  the  same  number  with  the 
addition  of  "B."  The  mill  site  may  be  in  another 
mining  district  or  in  a  section  different  from  that 
containing  the  lode. 

In  such  application  there  must  be  a  plat,  and  no- 
tice K  posted  on  both  lode  and  mill  site;  if  not  posted 
on  the  latter,  republication  will  be  required. — 25 
L.  D.  165;  27  Id.  373;  Rule  63. 

A  mill  site  is  not  allowed  to  abut  against  the 
end  line  of  a  lode  claim  (9  L.  0.  188)  unless  there  be 
special  proof  that,  notwithstanding  the  presumption 
in  such  case,  the  land  is  not  mineral,  and  the  lode 
does  not  continue  through  it. — 7  L.  0.  179. 

The  department  has  ruled  that  a  lode  inter- 
sected by  a  mill  site  or  placer  may  be  patented  only 
to  the  edge  of  the  intersecting,  claim — 13  L.  D.  146; 
16  Id.  186;  26  Id.  675;  28  Id.  120;  and  that  such  a 
location  is  not  valid  as  to  ground  on  the  other  side 
of  the  mill  site.— 26  L.  D.  675.  But  by  a  later  ruling 
both  parts  may  be  patented  if  the  vein  has  been  dis- 
covered on  both  sides. — 31  L.  D.  359. 

Two  mill  sites  not  containing  together  more 
than  five  acres  may  be  included  in  one  application. 
— 2  L.  D.  755. 

The  land  office  distinguishes  between  a  mere  wa- 
ter right  and  a  mill  site.— 5  L.  D.  190.  The  use  of  a 
spring  is  not  a  mill  site  occupation. — Id. 


APPLICATION    FOR   PATENT.  417 

PLACER    PATENT. 

Lodes  and  Placers  Distinguished. 

Only  metalliferous  deposits  in  place  are  consid- 
ered lodes  under  the  mining  act. — 9  L.  0.  165.  Every- 
thing else  of  a  mineral  character,  i.  e.  lands  con- 
taining a  mineral  substance  rendering  them  of  more 
value  for  the  extraction  thereof  than  for  surface 
purposes,  is  treated  as  placer  ground.  The  rulings 
to  this  effect  are  cited  on  pages  192,  193.  In  addition 
to  the  cases  there  given  it  has  been  ruled  that  lime- 
stone for  lime  kiln  purposes  may  be  located  as  placer 
ground. — 9  L.  0.  5 ;  and  it  cannot  be  located  as  a  lode 
claim. — 23  L.  D.  353;  Id.  395.  Mica,  may  be  entered 
as  a  mining  (presumably  a  placer)  claim. — 2  L.  0. 
131.  Iron  may  be  lode  or  placer,  according  to  the 
nature  of  the  deposit.  A  deposit  of  brick-clay  does 
not  make  placer  ground.— £  L.  D.  761;  31  L.  D.  108. 

Placer  claims  require  a  material  subdivision 
into— 

(1)  Claims  located  on  unsurveyed  lands. 

(2)  Claims   located   by   adopting    the    govern- 
mental subdivisions  of  lands  already  surveyed. 

Placer  Patent  on  Unsurveyed  Lands. 

In  applying  for  patent  on  a  placer  claim  located 
upon  unsurveyed  lands  the  foregoing  forms,  with 
obvious  alterations,  will  suffice. 

In  addition  to  such  forms  used  for  lode  applica- 
tions there  must  be  filed  in  the  Land  Office  with  the 
first  set  of  papers,  proof  that  the  placer  contains  no 
lodes  (BB)  excepting,  of  course,  such  as  are  espe- 
cially applied  for  in  the  application  itself,  or  ex- 
cluded therefrom  as  the  property  of  others,  and  a 
certified  copy  of  the  Descriptive  Report  (CC)  based 
on  L.  O.  Circular,  September  23,  1882,  1  L.  D.  5////, 
Rev.  Ed.  685,  now  embodied  in  Rule  60,  p.  357. 


418  APPLICATION    FOR    PATENT. 

BB.       PROOF    THAT    NO    KNOWN    VEINS    EXIST    IN    PLACER 
CLAIM. 

STATE  OF  COLORADO,,  County  of  Gil-pin:  ss. 

John  C.  Jenkins  and  Thomas  H.  Potter,  each  of  lawful 
age,  and  resident  in  Central  City,  in  the  said  County,  being 
first  duly  sworn,  each  for  himself,  and  not  one  for  the  other, 
saith,  that  he  is  a  citizen  of  the  United  States  ;  that  he  is 
well  acquainted  with  the  Keystone  Placer  Mining  Claim,  sit- 
uate in  Gregory  Mining  District  County  of  Gilpin,  State  of 
Colorado,  claimed  by  John  Wardell,  applicant  for  United 
States  patent  therefor ;  that  for  many  years  he  has  resided 
near  to,  and  is  well  acquainted  with  the  character  of  said 
land,  having  frequently  passed  over  the  same ;  that  his 
knowledge  of  said  land  is  such  as  to  enable  him  to  testify 
understandingly  in  regard  thereto,  and  that  there  is  not, 
to  his  knowledge,  within  the  limits  thereof,  any  known  vein 
or  lode  of  quartz  or  other  rock  in  place,  bearing  gold,  silver, 
cinnabar,  lead,  tin  or  copper,  upon  said  claim  or  any  part 
thereof,  and  further,  that  he  has  no  interest  whatever  in 
the  said  placer  claim. 

JOHN  C.  JENKINS. 

THOMAS    II.    POTTER. 

Subscribed  and  sworn  to  before  me,  this  second  day  of 
February,  A.  D.  1903,  and  I  hereby  certify  that  the  foregoing 
affidavit  was  read  to  the  above  named  John  C.  Jenkins  and 
Thomas  H.  Potter,  previous  to  their  names  being  subscribed 
thereto,  and  that  deponents  are  reputable  persons,  to  whom 
full  faith  and  credit  should  be  given.  Morris  Hazard, 

[SEAL.]  Notary  Public. 

This  affidavit  must  be  made,  by  two  or  more  wit- 
nesses (Rule  26)  and  filed  in  the  Land  Office,  to- 
gether with  transcript  FF,  with  the  first  set  of  pa- 
pers. 

The  descriptive  report  the  deputy  makes  out 
without  special  instructions  on  receipt  of  "B"  the 
order  for  survey,  and  forwards  it,  with  the  field 
notes  of  the  survey  to  the  Surveyor  General. 


APPLICATION   FOR   PATENT.  419 

CC.       THE    DESCRIPTIVE    REPORT. 

Survey  No.  *7000. 

Under  General  Land  Office  Circular  "N,"  of  September  23, 
1882,  upon  the  placer  mining  claim  known  as  the 
Hyena  placer,  claimed  by  Ethan  E.  Byron — situate  in 
Spanish  Bar  mining  district,  Clear  Creek  County,  Colo- 
rado, embracing  160  acres,  in  section  8,  township  3  S. 
range  73  W.  6th  P.  M.  Examination  made  February  5, 
1903,  by  Frank  A.  Maxwell,  U.  S.  Deputy  Mineral  Sur- 
veyor. 

(a)  The  soil  is  a  black  loam,  varying  from  3  to  6 
inches  in  depth,  underlaid  with  auriferous  gravel.  The 
timber  consists  of  a  scattering  growth  of  spruce  and  yellow 
pine  trees,  and  along  the  banks  of  the  creek  there  is  a  dense 
growth  of  small  willows. 

(&)  Beaver  Creek,  a  small  stream  about  10  feet  wide, 
runs  in  a  northeasterly  direction  through  the  claim. 

(c)  The  workings  upon  the  claim  consist  of  an  open 
cut  90  feet  long,  20  feet  wide  and  10  feet  deep.     Course  N. 
80°   E.      The  center  of  the  westerly  end  bears  N.  5°  W.  30 
feet  from  corner  No.  4.      A  ditch  .850  feet  long,  2  feet  wide 
and  18  inches  deep,  course  northeasterly,  the  head  of  which 
bears   N.   3°    E.   120  feet  from   corner  No.   6.      A  shaft   3x6 
feet,   10  feet  deep,   which   bears   from   corner  No.   4,   N.    2° 
W.  75  feet,  and  a  drift  3x6  feet,  18  feet  long,  which  bears 
from  corner  No.  4,  N.  37°  E.  420  feet. 

(d)  This  claim  is  located  about  three  miles  in  a  south- 
easterly   direction    from    the    town    of    Maysville,    and    one 
mile  west  of  Clear  Creek  Junction. 

(e)  The  Baker  and  Swansea  lodes,  located  about  three 
miles  in  a  northerly  direction  from  this  claim,  are  the  near- 
est well  known  lode  claims.      No  lode  has  ever  been  discov- 
ered upon  this  claim  or  in  the  immediate  vicinity. 

(f)  The  claim  is  well  adapted  for  placer  mining  pur- 
poses.     Water  has  been  brought  from  Beaver  Creek  to  work 
the  lower  portion  of  the  claim,  and  it  can  be  brought  from 
a  point  in  the  same  creek  about  %  mile  above  to  work  the 
whole  claim. 

(</)  The  works  or  expenditures  upon  this  claim,  placed 
thereon  by  the  claimant  and  his  grantors,  consist  of  an 
open  cut  90  feet  long,  20  feet  wide  and  10  feet  deep.  Course 
N.  80°  E.  The  center  of  the  westerly  end  bears  N.  5°  W. 
30  feet  from  corner  No.  4.  Value  $350.  A  ditch  850  feet 
long,  2  feet  wide  and  18  inches  deep,  the  head  of  which 
bears  N.  3°  E.  120  feet  from  corner  No.  6.  Course  north- 
easterly to  the  open  cut  mentioned  above.  Value  $200.  A 
shaft  3x6  feet,  10  feet  deep,  bears  from  corner  No.  4,  N. 
2°  W.  75  feet.  Value  $80. 

*If  on  surveyed  lands  and  conforming  to  legal  subdi- 
visions no  survey  number  is  given  and  no  survey  is  re- 
quired. 


420  APPLICATION    FOR    PATENT. 

(7i)  There  are  no  salt-licks,  salt-springs,  mines  other 
than  the  claimant's  workings,  nor  mill  seats  upon  this 
claim. 

I,  Frank  A.  Maxwell,  United  States  Deputy  Mineral 
Surveyor,  do  solemnly  swear  that  in  pursuance  of  an  order 
received  from  the  United  States  Surveyor  General  for  Colo- 
rado, dated  February  2,  1903,  I  have  made,  under  the  pro- 
visions of  General  Land  Office  Circular  "N,"  approved  Sep- 
tember 23,  1882,  a  personal  and  thorough  examination  upon 
the  premises,  of  the  placer  mining  claim  of  Ethan  E.  Byron, 
known  as  the  Hyena  placer,  situate  in  SpanisJi  Bar  Mining 
District,  Clear  Creek  County,  Colorado,  embracing  160  acres, 
in  Section  8,  Township  No.  3,  S.  Range  No.  73  W.  6th  P.  M., 
and  that  my  report  of  such  examination,  hereto  attached, 
is  specific  and  in  detail,  and  is  a  full  and  true  statement 
of  the  facts  upon  all  the  points  specified  in  said  circular. 

FRANK  A.  MAXWELL, 
U.  S.  Deputy  Mineral  Surveyor. 

Subscribed  and  sworn  to  by  the  said  Frank  A.  Max- 
well, U.  S.  Deputy  Mineral  Surveyor,  before  me,  a  notary 
public,  this  6th  day  of  February,  A.  D.  1903. 

Frank  J.  Hood, 

[SEAL.]  Notary  Public. 

This  descriptive  report  must  be  corroborated  by 
the  affidavit  of  one  or  more  disinterested  witnesses 
as  follows — Rule  60: 

DD.      CORROBORATIVE  REPORT. 
STATE  OF  COLORADO,  County  of  Clear  Creek:  ss. 

Daniel  Roberts  and  "Patrick  McNiilty  being  first  duly 
sworn,  each  severally  deposes  and  says  that  he  is  personally 
and  well  acquainted  with  the  placer  mining  claim  of  Ethan 
E.  Byron,  known  as  the  Hyena  placer,  situate  in  Spanish  Bar 
mining  district,  Clear  Creek  County,  Colorado,  embracing  160 
acres,  in  section  8,  Township  No.  3  S.  range  No.  73  west, 
and  also  with  the  character  of  all  the  land  included  in  said 
claim,  and  has  been  so  acquainted  for  two  years  last  past ; 
that  his  knowledge  of  said  claim  and  land  is  derived  from 
personal  observation,  and  is  such  as  to  enable  him  to  testify 
understandingly  with  regard  thereto ;  that  he  has  carefully 
read  the  foregoing  report  of  Frank  A.  Maxwell,  U.  S.  Deputy 
Mineral  Surveyor,  and  that  to  his  own  personal  knowledge 
said  report  is  in  all  respects  true  and  accurate. 

DANIEL   ROBERTS. 
PATRICK    McNuLTY. 

Subscribed  and  sworn  to  by  the  above  named  persons 
before  me,  this  6th  day  of  February,  1903.  John  Tomay, 

[SEAL.]  Notary  Public. 

The  descriptive  report  CC  with  its  Corroborative 
Report  DD  endorsed  or  attached,  the  Surveyor  Gen- 
eral approves  in  the  following  form: 


APPLICATION    FOR    PATENT.  421 

EE.       APPROVAL    OF    DESCRIPTIVE    REPORT. 

DEPARTMENT  OF  THE  INTERIOR,  ) 

Office  of  U.  S.  Surveyor  General, 
Denver,  Colorado,  February  19,  1903.  ) 
I,  C.  C.  Goodale,  United  States  Surveyor  General  for 
Colorado,  do  hereby  certify  that  the  foregoing  and  annexed 
report  of  the  examination  of  the  placer  mining  claim  of 
Ethan  E.  Byron,  known  as  the  Hyena  placer,  made  by  United 
States  Deputy  Mineral  Surveyor  Frank  A.  Maxwell,  under 
the  provisions  of  General  Land  Office  Circular  "N,"  approved 
September  23,  1882  ;  and  under  my  instructions  dated  Feb- 
ruary 3,  1903,  has  been  carefully  examined  and  conforms  in 
all  respects  to  the  requirements  of  said  circular  ;  and  said 
report  is  hereby  approved. 

C.  C.  GOODALE, 
U.  S.  Surveyor  General  for  Colorado. 

After  endorsement  of  such  approval,  the  Sur- 
veyor General  certifies  a 

FF.      TRANSCRIPT  OF  DESCRIPTIVE  REPORT, 

Including  its  exhibits  or  endorsements  DD  and  EE 
as  follows: 

GG.      CERTIFICATE  TO  DESCRIPTIVE  REPORT. 

DEPARTMENT  OF  THE  INTERIOR,  ) 

Office  of  U.  S.  Surveyor  General, 
Denver,  Colorado,  February  19,  1903.  ) 
I,  C.  C.  Goodale,  U.  S.  Surveyor  General  for  Colorado, 
do  hereby  certify  that  the  annexed  is  a  full,  true  and  correct 
copy  of  the  report,  made  under  the  provisions  of  General 
Land  Office  Circular  "N,"  approved  September  23,  1882,  and 
of  the  affidavits  and  approval  attached  to  said  report  on 
the  placer  mining  claim  of  Ethan  E.  Byron,  known  -as  the 
Hyena  placer,  situate  in  Spanish  Bar  mining  district,  Clear 
Creek  County,  Colorado,  Denver  land  district,  as  the  same 
appear  on  file  in  this  office. 

C.  C.  GOODALE, 
U.  S.  Surveyor  General  for  Colorado. 

This  transcript  so  certified,  together  with  the 
field  notes  and  plats,  is  sent  to  the  claimant  or  to  the 
deputy  who  is  supposed  to  deliver  all  papers  to  the 
attorney  for  the  applicant  to  enable  him  to  make  out 
the  notices  "K"  which  he  causes  to  be  posted  and 
published,  and  proceeds  in  all  further  respects  the 
same  as  on  application  for  lode  patent. 


422  APPLICATION    FOR    PATENT. 

Application  for  Patent  on  Surveyed  Lands, 

The  language  of  the  Congressional  Act  as  to  this 
class  of  claims  is  obscure,  but  it  seems  that  where 
a  placer  deposit  is  found  on  surveyed  lands,  discov- 
ery, location  and  record  must  be  made  exactly  as  in 
the  case  of  discovery  on  unsurveyed  public  domain, 
except  that  instead  of  a  description  by  metes  and 
bounds,  the  location  certificate  should  describe  it  as 
the  northeast  quarter  of  section  8,  toivnship  10,  etc., 
using  one  name  for  each  twenty  acres  and  not  claim- 
ing more  than  160  acres  by  one  record.  It  is  advis- 
able to  give  it  a  name  as  in  other  cases. 

Although  already  surveyed  it  should  be  staked, 
marking  the  stakes  with  the  name  of  the  claim  and 
number  of  the  corner  to  indicate  the  appropriation, 
replacing  the  government  stakes  if  not  then  found, 
and  it  has  been  decided  in  two  cases  in  California 
(cited  pages  197,  198}  that  this  staking  is  essential. 

The  Land  Office  however  holds  that  it  need  not 
be  restaked.— 22  L.  D.  409.  It  is  true  the  Govern- 
ment stakes  are  already  there,  but  there  is  nothing 
on  them  to  indicate  that  they  enclose  land  claimed 
by  an  individual  for  mining  purposes.  In  this  con- 
flict of  holdings  it  is  therefore  safe  if  not  essential 
to  restake  or  mark  the  old  stakes  upon  locating  a 
government  subdivision.  Of  course  any  subdivision 
less  than  160  acres  must  be  staked  by  the  locator,  as 
there  are  no  official  stakes  subdividing  a  quarter  sec- 
tion. 

When  the  placer  application  is  for  an  exact 
quarter  section,  or  a  series  of  forties  or  tens  recorded 
and  adopted  as  the  claim,  no  order  for  survey,  survey 
plat  or  field  notes  are  required,  their  office  having 
been  fulfilled  by  the  prior  government  survey  already 
made  and  platted  with  the  Surveyor  General,  and 
the  application  may  be  made  in  the  Land  Office  with- 
out any  proceedings  whatever  in  the  Surveyor  Gen- 
eral's office. 

The  proof  of  $500  expenditure  in  such  case  should 
be  made  by  the  affidavit  of  two  or  more  disinterested 


APPLICATION   FOR   PATENT.  423 

witnesses  acquainted  with  the  claim. — 25  L.  D.  550; 
Rule  25. 

The  descriptive  report  in  such  cases  is  not  ob- 
ligatory.— 7  L.  D.  390.  And  the  Commissioner  of  the 
General  Land  Office,  by  letter  of  October  20,  1900,  to 
the  Surveyor  General  of  Colorado,  instructed  that 
office  that,  where  legal  subdivisions  are  taken,  a  de- 
scriptive report,  though  approved  by  the  surveyor 
general,  would  not  be  official  unless  specially  required 
by  the  Department. 

The  circumstances  in  which  such  report  would 
be  required  by  the  department  are  uncertain,  but 
when  required,  would  doubtless  be  ordered  through 
the  office  of  the  surveyor  general. 

If  any  ground  is  excepted  so  that  the  claim  is 
not  an  exact  conformation  to  the  subdivisions  an  offi- 
cial survey  is  required. — 6  L.  D.  580;  in  which  case 
the  report  would  doubtless  be  required ;  but  no  official 
survey  is  required  if  the  excluded  ground  be  patented. 
—31  L.  D.  64. 

Where  a  Placer  Contains  Known  Lodes  Owned 

by  the  applicant,  they  are  applied  for  as  parcels 
of  the  placer  application  and  are  especially  desig- 
nated on  the  survey  by  their  names  but  without 
separate  numbers  and  platted  each  with  a 'width  of 
50  feet,  or  with  the  full  width,  if  so  located,  and  the 
claimant  elects  to  survey  them  for  such  full  width, 
and  to  pay  the  lode  price  for  such  full  width.  If 
such  lodes  have  never  been  previously  located  a  for- 
mal discovery  and  record  of  the  same  should  be  made 
and  abstract  filed  the  same  as  for  the  placer. 

In  requesting  order  for  survey  name  the  lodes, 
i.  e.,  insert  in  form  "A"  The  Special  Delivery  Placer, 
including  three  'known  lodes,  to  wit:  The  Silence, 
The  Security  and  The  Celerity,  etc.,  and  send  copies 
of  location  certificate  of  each  lode. — See  p.  383. 

Where  the  lode  and  placer  do  not  touch  they 
cannot  go  in  the  same  application. — 5  L.  0.  162. 


424  APPLICATION    FOR    PATENT. 

Patenting  Known  Lode  Within  Placer  Patent. 

Although  known  lodes  are  distinctly  excepted 
from  the  placer  patent  and  the  department  originally 
recognized  this  exception  (7  L.  0.  100}  it  was  later 
ruled  in  the  case  of  the  Pike's  Peak  Lode,  JO  L.  D. 
200;  14  Id.  47,  that  the  land  office  would  not  issue 
patent  to  the  owner  of  such  excepted  known  lode 
unless  the  placer  patent  had  been  either  judicially 
set  aside  to  the  extent  of  the  ground  covered  by  the 
surface  of  the  known  lode  or  the  placer  owner  had 
quit  claimed  such  surface  back  to  the  United  States 
so  as  to  revest  title  in  the  government. 

This  untenable  position  of  the  department  was 
persisted  in  until  the  South  Star  Lode  case,  20  L.  D. 
204,  was  decided,  where  the  whole  subject  was  re- 
viewed, and  the  ruling  made  that  patent  may  issue 
to  the  lode  owner  "when  it  had  been  ascertained  by 
inquiry  instituted  by  the  department"  that  a  lode  was 
known  to  exist  at  the  date  of  the  application  for  the 
placer  patent,  as  well  as  in  cases  where  a  judicial 
decree  to  same  effect  has  been  rendered.  The  result 
of  this  ruling  is  that  the  lode  owner  may  now  apply 
for  patent  as  in  any  ordinary  case  after  first  obtain- 
ing from  the  land  office  an  order  to  ascertain  whether 
the  lode  was  known  to  exist  before  the  placer  entry. 
Butte  Co.  21  L.  D.  125.  No  rules  have  been  since 
published  directing  how  such  inquiry  should  be  made, 
but  doubtless  it  would  be  required  to  give  notice  to 
the  holder  of  the  placer  patent,  who  would  be  al- 
lowed to  appear  and  contest  the  petition  for  the  or- 
der.— 27  L.  D.  676.  See  p.  205. 

If  the  application  is  allowed,  the  placer  claimant, 
if  he  contests  the  fact  that  there  was  any  valid 
known  lode  on  the  proper  date,  should  file  his  ad- 
verse claim  or  doubtless  he  could  allow  the  patent  to 
proceed  and  still  contest,  in  ejectment  brought  by 
either  side,  the  validity  of  the  later  lode  patent,  as 
in  the  case  of  Iron  8.  Co.  v.  Campbell,  16  M.  R.  218. 
Instance  where  patentee  of  placer  was  not  permit- 
ted to  subsequently  patent  a  lode  within  the  patented 
placer.— 27  L.  D.  661. 


APPLICATION    FOR    PATENT.  425 

As  to  What  Constitutes  a  Known  Lode,  the  rul- 
ings are  that  there  must  be  mineral  worth  work- 
ing disclosed  at  the  time  of  the  placer  entry. — 
10  L.  D.  156;  13  Id.  86.  And  the  general  test  on  this 
class  of  points  seems  to  be  that  the  land  as  a  lode 
claim  must  have  been  of  greater  value  than  for  the 
agricultural,  mill  site,  placer  or  other  use,  under 
which  it  was  applied  for  and  granted. — 12  L.  D. 
612;  14  Id.  54.  See  p.  203. 

Necessity  to  Adverse. 

Although  not  bound  as  in  the  case  of  lode  against 
lode  or  placer  against  placer  by  failure  to  adverse, 
the  lode  claimant  is  under  the  practical  necessity  to 
file  and  maintain  his  adverse,  in  order  to  place  his 
rights  beyond  cavil  and  secure  an  express  excep- 
tion of  his  lode,  or  a  patent  under  the  same  proceed- 
ings.— See  page  205. 

Group  Claims. 

In  the  case  of  the  St.  Louis  Go.  v.  Kemp,  decided 
in  1881  (11  M.  R..673),  a  placer  had  been  patented 
in  excess  of  160  acres.  The  Supreme  Court  sustained 
the  patent,  and  in  support  of  their  decision  asserted 
that  a  miner's  claim  might  consist  of  several  loca- 
tions; that  several  contiguous  locations  being  pur- 
chased by  one  man  became  his  claim.  They  say: 
"Such  is  the  general  understanding  of  miners  and 
the  meaning  they  attach  to  the  term."  Even  what 
seem  to  us  the  erroneous  impressions  of  our  court 
of  last  resort  command  respect  and  its  decisions 
are  none  the  less  law,  even  though  they  compel  us  to 
accept  new  meanings  to  the  words  of  our  language. 
In  fact  where  claims  under  district  rules  were  lim- 
ited to  100  feet  square  or  other  small  dimensions,  it 
has  been  very  common  to  buy  up  many  such  claims 
and  record  them  as  one  location.  The  interpretation 
was,  nevertheless,  strictly  within  the  province  and 
range  of  judicial  construction;  and  as  to  placers  the 
Congressional  section  is  not  clear  as  to  what  consti- 
tutes the  limit  of  a  claim. 


426  APPLICATION    FOR    PATENT. 

Prior  to  the  Kemp  case,  supra,  the  Land  Office 
had  properly  treated  each  lode  location  as  a  single 
mining  claim  and  the  practice  was  to  allow  out  one 
to  be  applied  for  in  one  proceeding.  After  the  Kemp 
case,  overlooking  the  obvious  distinctions  between 
lode  and  placer  claims,  the  statute  in  terms  defining 
the  size  of  the  former,  the  Department  began  to  allow 
applications  for  groups  of  lodes,  permitting  any  num- 
ber of  full  lode  claims  to  be  patented  as  one  claim, 
and  requiring  only  $500  expenditure  on  the  entire 
group.  The  only  restriction  imposed  was  that  the  sev- 
eral claims  should  be  contiguous;  i.  e.,  should  over- 
lap or  touch,  not  merely  corner  with  each  other. 

This  manifestly  wrong  construction  was  adhered 
to  until  the  publication  of  what  is  now  rule  48  of  the 
regulations  requiring  $500  on  each  location  or  for 
the  group-  the  aggregate  of  $500  multiplied  by  the 
number  of  locations.  In  his  official  letter  of  June  21, 
1898,  27  L.  D.  91,  the  Hon.  Secretary  considers  the 
whole  matter  and  comes  to  a  correct  definition  of  the 
term  "claim,"  as  being  the  equivalent  of  the  word 
"location." 

Although  we  have  always  believed  that  the  in- 
tent of  the  Act  of  Congress  was  to  require  every  lode 
location  to  make  a  separate  application,  it  has  now 
become  the  settled  practice  of  the  Land  Office  to 
allow  group  applications  and  when  perfected  by  pat- 
ent the  patent  would  doubtless  be  upheld. 

Where  several  lodes  are  thus  applied  for,  or 
where  a  placer  includes  lodes,  they  receive  only  one 
survey-lot  number,  but  the  corners  of  each  are  given 
a  separate  consecutive  numerical  designation,  begin- 
ning with  Cor.  No.  1  in  each  case,  which  must  be 
connected  with  a  government  corner  or  U.  S.  monu- 
ment.— Rules  135,  151.  The  survey  should  show  the 
boundaries  of  each  location.— 5  L.  D.  199;  6  Id.  808. 

A  group  composed  of  lodes  and  placers  may  be 
patented  if  contiguous.—^  L.  D.  7. 


APPLICATION    FOR    PATENT.  427 

What  Constitutes  Improvements. 

Underground  workings,  cross-cuts  or  tunnels  (on 
or  off  the  ground,  provided  they  are  held  by  appli- 
cant for  its  benefit,  and  are  bona  fide  intended  to 
cut  it),  buildings,  roads,  flumes,  fixed  machinery^ 
etc.,  or  the  'result  of  any  other  ~bona  fide  expendi- 
tures, constitute  improvements. 

Excepting  labor  which  leaves  no  trace  of  itself, 
such  as  hoisting  water,  whatever  counts  for  annual 
labor  will  count  for  the  $500  improvements. — See 
page  93. 

Undivided  interests  in  tunnels,  etc.,  held  in  com- 
mon with  parties  who  are  not  applicants,  are  allowed 
to  count  as  parcel  of  the  necessary  $500  improve- 
ments. 

Old  Improvements  on  the  Ground  may  be  pur- 
chased from  the  rightful  owners,  and  so  enure 
to  the  benefit  of  the  applicant.  The  deed  con- 
veying them  should  be  a  quit  claim  of  all  vendor's 
interest  in  the  claim  under  the  name  by  which  pat- 
ent is  sought,  and  of  all  improvements  thereon,  etc., 
and  where  abandoned  property  is  relocated  or 
jumped,  the  old  improvements  do  not  count  without 
such  purchase.— 30  L.  D.  289,  322.  The  department 
in  an  early  circular  intimated  that  they  could  not 
even  be  purchased  (Copp,  M.  L.  259},  but  it  later 
ruled  that  the  purchaser  is  entitled  to  the  benefit 
of  all  expenditures  made  by  his  grantor. — 21  L.  D. 
440.  Work  done  on  placer  prior  to  location  held  to 
count.— 20  Id.  455. 

Among  placer  improvements  cannot  be  counted 
dwelling  houses  or  other  structures  not  associated 
with  mining. 

Completed  Pending  Application. 

It  is  not  essential  that  the  $500  worth  of  im- 
provements should  exist  on  the  ground  at  the  time 
of  the  survey.  They  may  be  completed  at  any  time 
during  the  period  of  publication. — 29  L.  D.  491.  In 
such  cases  the  Surveyor  General  endorses  diagram 
"F"  with  a  certificate  not  containing  the  latter  part 


428  .         APPLICATION    FOR    PATENT. 

of  "G."  The  deputy  in  his  field  notes  describes  such 
improvements  as  may  exist,  and  adds,  in  substance: 
"These  improvements  are  not  worth  $500."  When 
completed  the  deputy  sends  a  special  affidavit  to  the 
Surveyor  General,  who  files  it  and  forwards  his  cer- 
tificate to  the  deputy  surveyor,  or  to  the  land  office 
direct,  if  the  deputy  so  request.  An  extra  deposit 
of  $5  is  required  where  this  affidavit  is  made  subse- 
quent to  first  filing  -of  field  notes. 

The  department  holds  (overruling  previous  de- 
cisions), that  the  statutory  requirements  (R.  8.  Sec. 
2325)  as  to  the  Surveyor  General's  certificate  of  im- 
provements is  directory  only,  and  that  it  may  be 
made  after  the  expiration  of  the  sixty  days'  publica- 
tion.—25  L.  D.  550;  26  Id.  122. 

Where  the  Applicant  Dies  Before  Entry. 

On  filing  proof  of  decease  the  papers  are  per- 
fected either  by  an  heir  or  the  executor  or  adminis- 
trator, and  patent  issues  to  "the  heirs  of"  the  appli- 
cant.—28  L.  D.  14. 

When   he   dies   after   entry   the   patent   issues   in 
the  name  of  the  deceased.— 2  L.  D.  162. 

Application  by  Trustee. 

Any  party  applying  to  make  entry  as  trustee 
must  disclose  fully  the  nature  of  the  trust  and  the 
name  of  the  cestui  que  trust;  and  such  trustee, 
as  well  as  the  beneficiaries,  must  furnish  satisfac- 
tory proof  of  citizenship;  and  the  names  of  benefi- 
ciaries, as  well  as  that  of  the  trustee,  must  be  in- 
serted in  the  final  certificate  of  entry. — Rule  54.  A 
claim  cannot  be  patented  for  the  benefit  of  a  foreign 
corporation.— 10  L.  D.  641;  20  Id.  379. 

Patent  to  Assigns. 

On  bringing  up  abstract  to  date  the  land  office 
has  issued  patents  to  purchasers  from  the  entry-man. 
But  as  the  deed  carries  the  patented  title  this  is  not 
necessary;  nor  is  it  regular.  The  land  office  cannot 
be  presumed  to  follow  title  after  entry,  and  might 
by  such  procedure  issue  it  to  a  party  not  entitled 
in  equity  to  take  it. 


APPLICATION    FOR   PATENT.  429 

Application  Without  Eecord  Title. 

Where  the  title  is  old  and  complicated  a  party 
may,  without  filing  abstract  supply  the  same  by 
.  affidavits  under  R.  8.  §  2332,  as  explained  by  Land 
Office  Rules  7-J-77,  that  he  has  worked  and  possessed 
the  claim  for  the  limitation  period  of  seven  or  other 
number  of  years  fixed  by  the  local  Statute. 

Conflicting  Applications. 

Where  an  application  is  pending  or  entry  has 
been  made,  a  subsequent  application  for  the  same 
land  should  not  be  accepted— 20  L.  D.  81;  29  Id.  29, 
114,  226;  31  Id.  59;  and  no  adverse  need  be  filed 
against  a  subsequent  application  erroneously  ac- 
cepted.—^ Id.  160;  Steel  v.  Gold  Co.  18  Nev.  80.  An 
adverse  suit  by  entry-man  does  not  waive  rights  ac- 
quired under  the  entry. — 29  Id.  114.  But  the  govern- 
ment will,  in  some  instances,  take  notice  of  an  ad- 
verse by  a  prior  applicant  and  stay  proceedings. — 22 
Id.  629;  25  Id.  263. 

The  Surveyor  General  gives  to  any  applicant  an 
approved  survey  showing  the  conflicts  with  prior  sur- 
veys, but  not  excluding  them  as  against  the  survey 
asked  for,  and  allowing  the  claimant  to  proceed  as 
he  may  or  can,  to  apply  for  patent  for  the  entire 
ground  within  his  exterior  lines,  although  wholly  or 
partly  covered  by  previous  patents.  It  is  left  to  the 
land  office  to  bar  the  application  so  far  as  it  pretends 
to  include  ground  previously  patented  or  applied  for. 
— See  p.  129. 

Rulings  as  to  Posting. 

The  notice  "K"  must  remain  posted  on  the  land 
office  bulletin  during  the  whole  period  of  60  days — 
and  the  60  days  do  not  begin  to  run  until  it  is  posted. 
—1  D.  D.  584;  Rev.  Ed.  572;  5  L.  D.  510. 

Posting  notice  inside  an  open  shaft  house  or  on 
the  shaft  house  held  to  be  in  a  "conspicuous  place." 
—9  L.  0.  113;  22  L.  D.  624;  but  placing  notice  in  a 
box  on  the  ground  among  large  boulders  and  not 
near  shaft,  held  not  a  conspicuous  place. — 21  L.  D. 
336. 


430  APPLICATION   FOR   PATENT. 

Allowing  Application  to  Sleep. 

Failure  to  prosecute  application  to  completion 
within  a  reasonable  time  after  termination  of  pro- 
ceedings constitutes  waiver  of  rights  secured  under4 
the  application.— 23  L.  D.  62,  301,  308,  359,  Jt01 ;  Rule 
56.  A  delay  beyond  the  end  of  the  calendar  year 
after  publication  held  fatal.— 31  L.  D.  69. 

Miscellaneous  Rulings  on  Patent  Application. 

Where  a  lode  claim  crosses  the  boundaries  of  a 
land  district,  apply  in  district  where  principal  work- 
ings lie,  but  the  notice  "K"  should  be  posted  in  the 
register's  office  of  each  district. — 2  L.  0.  130.  When 
the  land  office  is  closed  during  a  part  of  the  period 
of  60  days  the  time  of  closing  should  not  be  counted 
as  part  of  the  advertising  period. — 1  L.  D.  584;  Rev. 
Ed.  572.  A  claim  already  patented  cannot  be  made 
the  basis  of  a  second  application  for  more  surface. — 
9  L.  0.  113. 

Where  application  is  begun  in  the  wrong  land 
district  proceedings  must  be  de  novo,  after  error  dis- 
covered.—17  L.  D.  282. 

Surveyors  General  and  Deputy  Mineral  Sur- 
veyors are  disqualified  as  applicants  for  mineral 
land.— 29  L.  D.  333. 

Limitation  of  Entries. 

The  A.  C.  of  1889  (1  Sup.  792)  limiting  the  total 
acreage  of  the  aggregate  of  entries  under  all  the  land 
laws  to  320  acres  to  one  individual,  is  construed  by 
Act  of  1891  (1  Sup.  946)  to  not  apply  to  mineral  en- 
tries; but  this  section  has  no  bearing  on  the  question 
of  patenting  sundry  claims  on  one  application  re- 
ferred to  on  p.  425. 


ADVERSE  CLAIM.  431 


ADVERSE  CLAIM. 


Sixty  Days  to  File. 

R.  S.  Sec.  2325.  *  *  *  — If  no  adverse  claim  shall 
have  been  filed  with  the  register  and  the  receiver  of  the 
proper  land-office  at  the  expiration  of  the  sixty  days  of 
publication,  it  shall  be  assumed  that  the  applicant  is  enti- 
tled to  a  patent,  upon  the  payment  to  the  proper  officer  of 
five  dollars  per  acre,  and  that  no  adverse  claim  exists ;  and 
thereafter  no  objection  from  third  parties  to  the  issuance  of 
a  patent  shall  be  heard,  except  it  be  shown  that  the  appli- 
cant has  failed  to  comply  with  the  terms  of  this  chapter. 

Extent — Boundaries — Stays  Proceedings. 

R.  S.  Sec.  2326. — Where  an  adverse  claim  is  filed  during 
the  period  of  publication,  it  shall  be  upon  oath  of  the  per- 
son or  persons  making  the  same,  and  shall  show  the  nature, 
boundaries,  and  extent  of  such  adverse  claim,  and  all  pro- 
ceedings, except  the  publication  of  notice  and  making  and 
filing  of  the  affidavit  thereof,  shall  be  stayed  until  the  con- 
troversy shall  have  been  settled  or  decided  by  a  court  of 
competent  jurisdiction,  or  the  adverse  claim  waived. 

Thirty  Days  to  Bring  Suit. 

It  shall  be  the  duty  of  the  adverse  claimant,  within 
thirty  days  after  filing  his  claim,  to  commence  proceedings 
in  a  court  of  competent  jurisdiction,  to  determine  the  ques- 
tion of  the  right  of  possession,  and  prosecute  the  same  with 
reasonable  diligence  to  final  judgment ;  and  a  failure  so  to 
do  shall  be  a  waiver  of  his  adverse  claim.  *  *  * 

An  adverse  claim  must  be  made  during  the 
period  of  sixty  days  publication,  which  is  construed 
to  mean  on  or  before  the  sixtieth  day  after  the  date 
of  first  newspaper  publication,  such  date  being  ex- 
cluded in  the  calculation.— 13  L.  D.  286.  See  p.  437. 

The  proceedings  are  as  follows:  the  adverse 
claimant  subscribes  and  verifies  his 


432  ADVERSPJ  CLAIM. 

HH.      ADVERSE  CLAIM. 

United  States  Land  Office  at  Pueblo,  Colorado : 

In  the  matter  of  the  application  of  E.  H.  Cook  for  a 
United  States  patent  to  the  Bear  Lode  mining  claim,  situate 
in  Cripple  Creek  mining  district,  County  of  Teller,  State  of 
Colorado. 

To  the  Register  and  Receiver  of  the  United  States  Land 
Office,  and  to  the  above  named  claimant : 
WHEREAS,  E.  H.  Cook  did,  on  the  16th  day  of  Decem- 
ber, A.  D.  1902,  file  in  the  district  land  office  of  the  United 
States,  at  Pueblo,  Colorado,  a  certain  plat  of  a  survey  of  a 
certain  lode,  together  with  his  application  for  a  United 
States  patent  for  said  lode,  naming  and  calling  the  said  lode 
in  said  plat  and  application  the  Bear  Lode,  situate  in  Cripple 
Creek  mining  district,  County  of  Teller,  State  of  Colorado ; 
said  survey  and  plat  being  designated  as  mineral  survey  No. 
11,310,  and  consisting  of  1500  linear  feet,  together  with  sur- 
face ground  300  feet  in  width ;  and  the  said  E.  H.  Cook  did, 
at  the  same  time  and  place,  give  notice  that  he  would  ap- 
ply for  a  United  States  patent  for  the  above  described  lode 
and  premises  in  substance  as  follows  : 

[Here  attach  copy  of  newspaper  publication.] 
AND  WHEREAS,  The  first  publication  of  said  notice  of 
said    application    appeared    in    the    Cripple     Creek    Star,    a 
weekly  newspaper  published  at  Cripple  Creek,  in  said  County 
and  State  on  the  18th  day  of  December,  A.  D.  1902. 

Now  THEREFORE,  I,  Edward  F.  Bishop,  a  citizen  of  the 
United  States  over  the  age  of  twenty-one  years,  residing  in 
and  my  postoffice  address  being  Denver,  in  the  County  of 
Denver,  in  said  State,  do,  on  this  third  day  of  February, 
A.  D.  1903,  enter  this,  my  protest,  and  adverse  claim  against 
the  issuing  of  a  patent  to  the  said  E.  H.  Cook,  for  his  pre- 
tended claim  upon  the  so-called  Bear  Lode,  as  set  forth  in 
his  said  plat  and  field  notes  as  aforesaid,  for  the  following 
reasons,  to  wit : 

1.  The  surface  ground  and  veins  or  lodes   contained 
therein  as  set  forth  and  described  in  the  plat  and  field  notes 
of  the  said  E.  H.  Cook,  or  a  great  portion  thereof,  are  not  the 
property  of  the  said  applicant,  neither  is  he  entitled  to  hold 
the  same  under  or  by  virtue  of  the  local  laws,  rules  and  cus- 
toms  of   miners    in   said   mining   district,    the    laws    of    the 
State  of  Colorado,  or  the  Statutes  of  the  United  States  re- 
lating to  mining  claims. 

2.  Because  a  great  portion  of  the  premises  described 
in  said  plat  and  notice   of  said  applicant,  and   claimed  by 
him  as  the  so-called  Bear  Lode,  is  claimed  adversely,  and  is 
owned  by   this   protestant,  and  is   in  fact  a  portion   of  the 
premises  claimed  and  owned  by  this  protestant  as  the  Ele- 
phant Lode,  as  will   appear   by  reference  to  an  abstract  of 
title  herewith  filed,  made  a  part  of  this  protest  and  marked 
Exhibit  A. 

3.  Because   this  protestant    (and  his  grantors)    have 
held,  occupied  and  possessed  a  great  portion  of  the  premises 
set  forth  and  described  by  the  said  E.  H.  Cook  in  his  plat 


ADVERSE  CLAIM.  433 

and  notice  of  the  so-called  Bear  Lode,  long  prior  to  the  pre- 
tended discovery  and  location  of  the  so-called  Bear  Lode ; 
such  occupation  and  possession  of  this  protestant  (and  his 
grantors)  having  been  under  and  by  virtue  of  a  full  com- 
pliance with  the  local  laws,  rules  and  customs  of  said  min- 
ing district,  and  the  laws  of  said  State,  and  of  the  United 
States,  pertaining  to  mineral  lands. 

4.  Because  this  protestant    (and  his  grantors)     have 
held,    occupied    and   possessed   all    that    portion    of    the    so- 
called   Bear  Lode,   as   represented   on  the   plat   of  a  survey 
made   by   Thomas  L.   Darby,  deputy   United   States  mineral 
surveyor,   and   colored   red,  said   plat   of   said   survey    being 
herewith  filed,  marked  Exhibit  B,  and  made  a  part  of  this 
protest,    and   hnve    held,    occupied    and    possessed   the   same 
long   prior  to   the  pretended  discovery   and   location   of  the 
so-called  Bear  Lode.      And  this  protestant  is    the    original 
discoverer  and  locator  of  said  Elephant  Lode   (or  is  a  bona 
fide  purchaser  for  a  valuable  consideration,  from  or  through 
the  original   discoverer  and  locator  of   said  Elephant  Lode, 
by  conveyances),  as  shown  on  said  abstract.      See  Rule  81. 

5.  Because  a  valid  discovery,  location,  and  record  of 
said  Elephant  Lode  was  made  by  this    protestant     (or    his 
grantors),   in  strict  compliance  with  said  local  laws,   rules 
and   customs,   and  the   laws    of  the   State   of   Colorado  and 
of  the  United  States,  and  while  the  same  was  vacant  min- 
eral   land    of    the    United    States    open    to    occupation    long 
prior  to  any  pretended  discovery  or  location  thereof  by  said 
E.  H.  Cook   (or  his  grantors)   and  said  Elephant  Lode  hath 
been  occupied  and  possessed  as  aforesaid,  ever  since  its  dis- 
covery as  aforesaid,  by  this  protestant    (and  his  grantors), 
under  and  by  virtue  of  such  discovery,  location  and  record. 

6.  Because  the  discovery  shaft  of  the  so-called  Bear 
Lode  was  not  of  the  legal  depth  of  ten  feet  from  the  lowest 
part  of  the  rim  at  the  surface,   as   required  by   law  at  the 
date   of   the   pretended   record  of   the  same,   and   has    never 
been  since  sunk  to  that  depth.     7,  etc.,  8,  etc. 

THEREFORE,  This  protestant  enters  this  his  protest  and 
adverse  claim  against  the  issuance  of  a  patent  to  the  said 
E.  H.  Cook,  for  his  claim  upon  the  so-called  Bear  Lode. 

ED.  P.  BISHOP. 

STATE  OF  COLORADO,  County  of  Teller:  ss. 

On  this  3d  day  of  February,  A.  D.  1903,  before  me,  the 
subscriber,  a  Notary  Public  in  and  for  said  county,  person- 
ally appeared  the  above  named  Edivard  F.  Bishop,  who  being 
first  duly  sworn,  saith  that  he  is  the  adverse  claimant 
named  in  the  foregoing  protest  and  adverse  claim  above 
subscribed  by  him.  That  he  has  read  the  same  and  knows 
the  contents  thereof ;  that  the  same  is  true  in  substance 
and  in  fact ;  and  that  the  said  adverse  claim  is  made  in 
good  faith  and  to  protect  his  better  and  prior  title. 

•  ED.  P.  BISHOP. 

Sworn  and  subscribed  before  me,  this  3d  day  of  Febru- 
ary, A.  D.  1903.  E.  H.  Gruber, 

[SEAL.]  Notary  Public. 


434  ADVERSE  CLAIM. 

To  the  above  reasons  others  may  be  added  where 
specific  facts  are  known  going  to  the  invalidity  of 
the  claim  sought  to  be  patented,  but  in  every  case 
allege  that  the  claims  conflict  and  that  the  adverse 
claimant  is  owner  of  the  conflicting  area  and  veins, 
as  in  paragraph  No.  2  of  the  above  form.  The  first 
five  paragraphs  constitute  a  good  statement  of  an 
adverse  right,  according  to  the  various  land  office 
rulings,  and  others  are  added  only  as  precautionary. 

Exhibit  "A"  Is  an  Abstract  of  Title  certified  as 
in  form  "N"  and  should  contain  a  copy  of  the 
Location  Certificate.  But  failure  to  file  the  ab: 
stract  within  the  period  of  publication  (15  L.  D. 
45)  as  well  as  failure  to  furnish  the  certified  copy, 
have  been  held  not  fatal.— 14  L.  0.  237. 

Exhibit  "B"  Is  a  Plat  made  by  a  U.  S.  deputy  min- 
eral surveyor,  showing  the  interference  of  the  two 
claims,  certified  as  follows: 

I  hereby  certify  that  the  above  diagram  correctly 
shows  the  Elephant  Lode  in  its  entirety,  its  relative  situa- 
tion or  position  to  the  Bear  Lode  and  the  extent  of  the  con- 
flict claimed  to  exist  between  said  Bear  Lode  and  said  Ele- 
phant Lode  as  actually  surveyed  by  me. 

Thomas  L.  Darby, 
U.  S.  Deputy  Mineral  Surveyor. 

When  it  is  impossible  to  procure  an  actual  sur- 
vey, as  of  a  snow-bound  claim,  an  adverse  claim 
showing  the  nature,  extent  and  boundaries  of  the 
conflict,  stating  the  reason  why  the  claim  could  not 
be  reached  for  survey,  will*  be  sufficient. — 1  L.  D. 
592;  Rev.  Ed.  582;  Hoffman  v.  Beecher,  31  Pac.  92. 
The  plat  need  not  be  made  by  a  U.  S.  deputy  sur- 
veyor.—27  L.  D.  358;  29  Id.  460;  Anchor  v.  Howe,  50 
Fed.  366. 

No  plat  required  where  claimant  and  adverse 
claimant  hold  by  legal  subdivision. — Rule  82. 

Improvements. 

The  amount  of  improvements  on  the  adversing 
claim  is  immaterial,  and  though  formerly  required, 
need  not,  under  present  rules,  be  shown,  or  their 
value  stated. — Rule  82. 


ADVERSE  CLAIM.  435 

Separate  Adverse  Claims. 

Where  there  are  several  Applications  to  be  ad- 
versed  by  a  single  lode,  a  separate  Adverse  Claim 
with  its  Plat  and  Abstract  must  be  filed  in  each 
case.  Where  the  adverse  claimant  has  several  lodes 
with  which  he  intends  to  adverse  a  single  applica- 
tion, the  practice  is  to  combine  them  in  a  single  Ad- 
verse Claim. 

Where  and  by  Whom  Verified. 

An  adverse  claim  is  usually  verified  by  the  ad- 
verse claimant  or  one  of  the  adverse  claimants  and 
within  the  land  district. 

But  by  Act  of  April  26,  1882  (post  p.  468),  it  may 
be  verified  by  an  agent  or  attorney  in  fact  cognizant 
of  the  facts  stated,  who  must  swear  to  his  agency 
and  furnish  proof  thereof. — Rules  78,  7,9.  Such  agent 
must  make  his  verification  in  the  land  district. — 
Rule  80.  A  corporation  verifies  either  by  its  execu- 
tive officer  (president)  or  its  agent  thereto  author- 
ized. And  if  the  claimant  is  a  non-resident  or  absent 
from  the  district  and  verifies  it  personally  he  may 
make  such  verification  wherever  he  may  be,  before 
the  clerk  of  any  court  of  record  or  a  notary  public, 
anywhere  within  the  United  States. 

In  cases  of  emergency  it  is  a  legitimate  expe- 
dient to  have  the  intending  adverse  claimant  convey 
to  a  third  party  within  the  district,  who  then  makes 
and  verifies  the  adverse  claim  precisely  as  if  he 
were  the  real,  as  he  becomes  in  fact  the  legal,  owner 
of  the  adversing  claim.  But  since  the  Act  allowing 
verification  by  the  adverse  claimant  beyond  the  dis- 
trict, or  the  filing  by  an  agent,  this  course  need  sel- 
dom be  resorted  to. 

Form  of  Adverse  and  Verification  by  Agent. 

Proceed  as  in  form  "HH"  to  the  last  paragraph 
and  insert: 

Wherefore  this  protestant,  by  Charles  T.  Limlerg,  his 
duly  authorized  agent  and  attorney  in  fact  who  is  personally 
cognizant  of  the  facts  herein  stated,  enters  this  his  pro- 


436  ADVERSE  CLAIM. 

test  and  adverse  claim  against  the  issuance  of  a  patent  to 
the  said  E.  H.  Cook  for  his  claim  upon  the  so-called  Bear 
Lode.  EDWARD  F.  BISHOP, 

By  Charles  T.  Limberg, 
His  agent  and  attorney  in  fact. 

STATE  OF  COLORADO,  County  of  Teller:  ss. 

On  this  third  day  of  February,  A.  D.  1903,  before  me, 
the  subscriber,  a  Notary  Public  in  and  for  said  county,  per- 
sonally appeared  the  above  named  Charles  T.  Limberg,  who 
being  first  duly  sworn,  saith  that  he  is  the  duly  authorized 
agent  and  attorney  in  fact  of  the  above  named  Edward  F. 
Bishop,  adverse  claimant  named  in  the  foregoing  protest 
and  adverse  claim  above  subscribed  by  affiant  as  will  further 
appear  by  the  copy  of  his  power  of  attorney  hereto  attached 
marked  Exhibit  C  ;  that  affiant  has  read  the  foregoing  pro 
test  and  adverse  claim,  and  is  cognizant  of  the  facts  therein 
stated,  and  that  the  same  is  true  in  substance  and  in  fact, 
and  is  made  in  good  faith  to  protect  the  prior  and  better 
title  of  his  said  principal. 

CHARLES  T.  LIMBERG. 

Sworn  and  subscribed  before  me  this  third  day  of  Feb- 
ruary, A.  D.  1903.  E.  H.  Gruber, 

[SEAL.]  Notary  Public. 

By  Co-Owner. 

A  single  co-owner  may  make  and  verify  the  ad- 
verse claim  "on  behalf  of  himself  and  his  co-owners," 
which  phrase  should,  in  the  form  "HH,"  follow  the 
name  of  the  protestant  wherever  it  occurs  or  where 
the  context  requires  it,  when  an  adverse  is  so  made. 

And  it  is  held  that  one  co-owner  may  adverse 
although  another  co-owner  refuse  to  join  him. 

And  one  co-owner  cannot  withdraw  his  adverse 
so  as  to  prejudice  another  who  has  joined  with  him. 

Against  Co-Tenant. 

Where  one  or  more  co-tenants  apply  for  patent, 
omitting  the  name  of  one  or  more  of  their  associates, 
the  title  received  enures  to  the  benefit  of  all  the  co- 
owners. — Turner  v.  Sawyer,  150  U.  'S.  578;  Brundy 
v.  Mayfield,  38  Pac.  1067.  Nevertheless,  the  legal  title 
passes  by  the  patent,  to  the  patentees  and  to  them 
only;  and  while  the  ousted  co-tenant  will,  in  equity, 
upon  proper  proceedings  be  declared  a  beneficiary 
under  the  patent,  yet  if  he  is  aware  of  the  proceed- 
ing in  time  and  has  opportunity,  undoubtedly  the  bet- 


ADVERSE  CLAIM.  437 

ter  course  is  to  adverse.  By  Rule  53  the  Land  Office 
regards  a  co-tenant  in  such  case  as  a  protestant  rather 
than  an  adverse  claimant  and  does  not  require  suit 
in  support  of  the  protest;  but  if  he  elects  to  bring 
suit  the  application  will  be  stayed  to  await  its  de- 
termination.— 25  L.  D.  495.  The  distinction  here 
attempted  is  refined.  There  is  nothing  in  the  Tur- 
ner case  construed  in  25  L.  D.  495,  to  intimate  that 
a  co-tenant  may  not,  if  he  wish,  file  his  adverse 
claim. 

Time  to  File. 

The  period  is  strictly  limited  to  sixty  days  exclud- 
ing the  first  day. — 13  L.  D.  718;  28  Id.  224. 

To  instance:  where  first  publication  was  on  Oc- 
tober 19  they  excluded  the  first  day  and  count — 

October  12  days; 

November  30  days; 

December  18  days; 

total  60  days,  and  made  December  18th,  the  last  day 
on  which  an  adverse  could  be  filed. — 13  L.  D.  286;  16 
L.  D.  101. 

Time  Can  not  be  Extended. 

No  adverse  claim  can  be  received  after  the  ex- 
piration of  the  statutory  period,  and  the  Department 
is  without  authority  to  enlarge  the  time  for  filing. — 
29  L.  D.  4W. 

So  also  the  30  days  time  allowed  for  commencing 
suit  cannot  be  extended;  the  law  limiting  the  period 
is  mandatory;  if  the  papers  intended  to  commence 
suit  are  delayed  in  the  mail,  or  action  is  delayed 
through  the  agency  of  an  attorney  corrupted,  thev 
Land  Office  can  afford  no  relief. — 2  L.  D.  707;  Sicfcel, 
190,  320.  But  the  Department  will  not  review  a  ju- 
dicial determination  that  a  suit  was  initiated  within 
the  statutory  period. — 23  L.  D.  20. 

Republication. 

When  for  any  cause  a  republication  is  required, 
the  adverse  claim  must  be  re-filed  during  the  second 
period  of  advertising;  but  no  additional  filing  fee  is 
charged. — Sickel,  313. 


438  ADVERSE  CLAIM. 

Where  there  has  been  a  material  misdescription 
in  the  published  notice  a  republication  (and  in  this 
case  a  resurvey)  will  be  ordered,  although  applicant 
has  already  made  final  entry. — 17  L.  D.  565. 

Sunday — Holidays. 

It  has  been  ruled  that  an  adverse  may  be  filed 
on  Sunday,  when  the  last  day  falls  on  Sunday;  and 
out  of  office  hours  on  any  day;  but  that  the  receiv- 
ing and  filing  out  of  office  hours,  or  on  Sunday,  is 
not  compulsory  upon  the  officers. — 6  L.  0.  73;  23 
L.  D.  546.  And  that  if  the  60th  day  fall  on  Sunday 
the  adverse  may  be  filed  on  the  succeeding  Monday. — 
8  L.  D.  430.  The  same  ruling  has  been  followed 
where  the  last  day  falls  on  a  legal  holiday. — IS  L.  D. 
718. 

Amendment. 

An  adverse  claim  cannot  be  withdrawn  for 
amendment;  but  if  a  material  defect  should  be  dis- 
covered, there  would  be  nothing  to  prevent  the  filing 
of  a  second  adverse,  complete  in  itself,  provided  the 
60  days  had  not  expired.— Copp,  121,  155,  227;  Sickel, 
208. 

An  Appeal  Lies  from  the  rejection  of  an  adverse 

claim. — 13  L.  D.  718.  In  an  instance  where  an  adverse 
had  been  filed  which  was  dismissed  as  defective  but 
the  adverse  claimant  brought  his  euit  and  filed  his 
certificate,  the  land  office  declined  to  allow  further 
action  on  the  application  until  the  decision  of  the 
suit— 2  L.  D.  706. 

If  the  adverse  claim  is  dismissed  by  the  local 
Land  office  the  adverse  claimant  must  nevertheless 
bring  suit  within  the  30  days-  or  his  rights  will  be 
gone  although  he  sustain  his  contention  on  appeal 
to  Washington  from  the  dismissal  of  his  adverse. 
This  manifestly  wrong  and  unjust  ruling  was  the 
final  result  of  all  possible  holdings  on  the  point,  in 
the  various  branches  of  the  Land  Department,  in 
the  case  of  a  lode  called  the  "No  Mistake."— 22  L.  D. 
274. 


ADVERSE  CLAIM.  439 

What  Claims  Should  Adverse. 

A  mill  site  must  adverse  a  lode  claim  to  protect 
its  rights. — 1  L.  D.  566;  Rev.  Ed.  .555.  But  see  con- 
tra, 25  Id.  7.  Of  course  lode  must  adverse  lode,  and 
mill  site  must  adverse  mill  site,  and  placer  must  ad- 
verse placer,  or  all  pretense  of  prior  title  will  cease  to 
be  of  avail. — See  page  128.  A  party  for  whose  use  the 
patent  will  enure  need  not  adverse. — Hunt  v. 
Patchin,  So  Fed.  816.  And  an  agreement  to  patent 
for  another,  in  trust,  is  valid. — Bates  v.  Wilson,  14 
Colo.  140. 

Such  easements  (flumes,  ditch  rights,  etc.)  as 
are  protected  by  statute  need  not  adverse. — Rockivell 
v.  Graham,  15  M.  R.  299. 

Unpatented  Town  Lots  have  been  allowed  to  ad- 
verse a  mining  application  and  the  occupant  of  the 
lot  has  the  better  title  unless  the  ground  at  the  time 
of  the  location  was  known  to  have  mineral  value. — 
Bonner  v.  Meikle,  82  Fed.  697;  Young  v.  Goldsteen,  97 
Fed.  306.  But  the  department  has  lately  held  that 
such  adverse  would  be  rejected  and  that  the  question 
of  known  mineral  value  should  be  decided  upon  hear- 
ing in  the  land  office —23  L.  D.  522. 

Miscellaneous  Rulings. 

An  adverse  claim  substantially  defective  may  be 
rejected.— 3  L.  0.  18;  9  L.  0.  5.  But  if  it  show  the 
nature,  boundaries  and  extent  of  the  claim,  the  Land 
Office  will  accept  it  even  though  it  do  not  meet  all  the 
requirements  of  the  regulations. — 27  L.  D.  358. 

The  land  office  is  not  bound  to  receive  an  ad- 
verse claim  when  the  filing  fee  is  not  paid  or  tendered. 
—29  L.  D.  413. 

Where  there  is  no  surface  conflict  an  adverse 
filed  to  anticipate  conflict  expected  on  the  dip,  will 
not  be  received.— 6  L.  D.  318;  29  Id.  662;  Cham- 
pion Co.  v.  Wyoming  Co.  16  M.  R.  145. 

An  adverse  based  on  a  claim  located  after  the 
publication  began  not  containing  allegations  deny- 
ing the  validity  of  the  prior  claim  adversed,  will  be 
rejected.— 7  L.  0.  50;  Contra,  2  L.  D.  699. 


440  ADVERSE  CLAIM. 

Suit  in  Support  of  Adverse. 

After  the  adverse  claim  is  filed,  the  adverse 
claimant  must  bring  suit  for  the  premises  in  dis- 
pute, within  30  days,  under  the  terms  of  R.  8.  § 
2326.  See  p.  Jt31. 

If  his  suit  is  not  brought  within  the  thirty  days 
the  adverse  claimant  has  no  standing  in  the  Land 
Office  except  as  a  mere  protestant;  and  the  applicant 
may  proceed  to  enter,  notwithstanding  the  adverse. 
—14  L.  D.  180. 

It  has  been  held  ^that  failure  to  bring  suit 
within  the  30-day  period  must  be  specially  pleaded 
and  cannot  be  availed  of  for  the  first  time  on  ap- 
peal.— Providence  Co.  v.  Marks,  60  Pac.  938. 

The  Proper  Court  is  usually  the  District  Court  of 
the  County  where  the  mine  is  situate,  except  in 
those  cases  where  the  facts  of  value  and  citizenship 
are  such  that  the  U.  S.  Circuit  Court  may  have  juris- 
diction. 

It  had  been  ruled  in  several  districts  that  an 
adverse  suit  presented  Federal  questions  so  as  to 
give  jurisdiction  to  the  U.  S.  Courts— Burke  v.  Bun- 
ker Hill  Co.  46  Fed.  644.  But  HALLETT,  J.  always 
refused  to  entertain  jurisdiction  on  this  ground,  and 
his  construction  has  been  sustained,  and  the  ques- 
tion set  at  rest  by  the  Supreme  Court,  in  Blackburn 
v.  Portland  Co.  175  U.  8.  571;  followed  by  Shoshone 
Co.  v.  Rutter,  177  U.  S.  505;  Mt.  View  Co.  v.  McFad- 
den,  180  U.  8.  533. 

When  the  Federal  Court  has  jurisdiction  on  ac- 
count of  diverse  citizenship,  or  when  the  pleader  is 
able  to  state  a  Federal  question  in  the  complaint, 
which  is  a  difficult  matter,  the  pleadings  should  also 
show  the  jurisdictional  value  $2,000,  and  whether 
the  premises  are  lode  or  placer. — Yelloio  Aster  Co. 
v.  Winctiell,  95  Fed.- 213. 

Even  when  the  courts  of  the  United  States  have 
undoubted  jurisdiction  the  State  Court  is  not  ousted, 
but  the  suit  may  be  commenced  in  the  State  Court, 
subject  to  defendant's  right  of  removal. 


ADVERSE  CLAIM.  441 

Filing  complaint,  but  delaying  issue  of  summons, 
is  such  a  commencement  of  "proceedings,"  as  to  sus- 
pend jurisdiction  of  the  Department.— 22  L.  D.  16. 

Proof  of  Commencing  Suit. 

After  the  complaint  is  filed  a  certificate  should 
be  made  and  signed  by  the  clerk  of  the  court  and 
filed  in  the  local  Land  Office  in  substance  as  follows: 

JJ.      CERTIFICATE   OF    SUIT. 

STATE  OF  COLORADO,  County  of  Teller:  ss. 

I,  Alex.  W.  Grant,  Clerk  of  the  District  Court  of  said 
County,  do  hereby  certify  that  Ed.  F.  Bishop  did  on  the  10th 
day  of  February,  A.  D.  1003,  commence  an  action  in  said 
Court  against  E.  H.  Cook,  to  sustain  an  adverse  claim 
against  the  Bear  Lode,  survey  lot  No.  11,310,  situate  in 
Cripple  Creek  Mining  District,  Teller  County,  State  of  Colo- 
rado, and  to  recover  possession  of  all  that  parcel  of  the 
Elephant  Lode,  embraced  within  the  lines  of  said  survey  lot, 
and  that  said  action  is  now  pending  and  undetermined  in 
said  Court. 

Attest  my  hand  and  the  seal  of  said  Court  at  Cripple 
Creek,  this  10th  day  of  February,  A.  D.  1903. 

[SEAL    OF    COURT.]  ALEX.     W.     GRANT, 

Clerk. 

But  the  failure  to  file  this  certificate  is  not  fatal 
under  Rule  88,  which  requires  the  applicant  to  file 
certificate  showing  affirmatively  that  no  suit  has 
been  brought. 

When  a  Suit  Is  Already  Pending  between  the  same 
parties  for  the  recovery  of  the  ground  in  conflict  at 
the  time  of  the  filing  of  the  adverse,  it  has  been  ruled 
that  such  suit  may  stand  as  the  suit  to  support  the 
adverse  and  no  new  suit  need  be  brought. — 8  L.  D. 
437;  29  Id.  194.  In  such  case  the  plaintiff  cannot  dis- 
miss so  as  to  leave  the  adverse  without  a  suit  support- 
ing it.— Axiom  Co.  v.  Little,  61  N.  W.  441- 

The  Suit  in  Support  of  an  Adverse  is  ordinarily 

at  law  by  ejectment  and  such  a  suit  is  certainly 
contemplated  in  the  statute  above  printed  by  the 
use  of  the  clause  "the  jury  shall  so  find."  Such 
is  undoubtedly  the  form  of  action  where  the  plain- 
tiff, as  is  usually  the  case,  is  out  of  possession. 
But  where  the  plaintiff  is  already  in  possession  he 


442  ADVERSE  CLAIM. 

may  proceed  in  equity  by  bill  to  quiet  title.  This 
view  making  the  form  of  action  depend  upon  whether 
plaintiff  is  in  or  out  of  possession  is  that  which  is 
clearly  expressed  by  the  final  authority  in  such  cases. 
—Perego  v.  Dodge,  163  U.  8.  165. 

There  had  been  decisions  holding  in  general 
terms  that  ejectment  was  the  proper  remedy: 
Becker  v.  Pugn,  15  M.  R.  304;  Manning  v.  Strehlow, 
11  Colo.  .451;  Burke  v.  McDonald,  J3  Pac.  351 ;  and 
others  asserting  it  to  be  an  equitable  action:  Doe  v. 
Waterloo  Co.  43  Fed.  219;  Shoshone  Co.  v.  Rutter, 
87  Fed.  801;  Providence  Co.  v.  Burke,  57  Pac.  641; 
McFadden  v.  Mt.  View  Co.  97  Fed.  670;  but  the 
Perego  case  states  the  obvious  test  of  possession  as 
determining  the  form  of  action. 

The  cases  which  hold  that  it  is  an  equitable 
action  lose  sight  of  the  fact  that  the  adverse  and  the 
suit  are  independent  proceedings.  The  adverse  be- 
ing filed  in  the  Land  Office,  the  Government,  the 
Trustee  of  the  Title — directs  the  contestants  to  ad- 
judicate their  controversy  in  a  "court  of  competent 
jurisdiction."  It  then  allows  the  winning  party  to 
report  his  obedience  to  the  direction,  his  success  in 
the  suit — and  the  patent  application  resumes  its 
progress.  There  is  no  connection  between  the  two 
procedures  such  as  to  bring  the  cause  within  any 
one  of  the  limited  schedule  of  the  subjects  of  equit- 
able jurisdiction.  But  if  at  the  proper  time  for 
bringing  suit  the  plaintiff  be  in  possession  he  has 
the  right  to  bring  suit  in  equity  to  quiet  title:  the 
same  suit  which  he  could  maintain  if  there  were  no 
controversy  pending  in  the  Land  Office. 

If  neither  party  is  in  actual  exclusive  possession 
or  if  the  facts  render  the  point  doubtful  the  claim- 
ant can  treat  the  application  as  an  ouster  and  pro- 
ceed at  law.— Becker  v.  Pugh,  15  M.  R.  304.  See  p.  314. 

In  agreement  with  the  Perego  case  and  with 
these  views  are  the  cases  of  Durgan  v.  Redding,  103 
Fed.  914;  Johnson  v.  Munday,  104  Fed.  594;  Young 
v.  Ooldsteen,  97  Fed.  303;  Book  v.  Justice  Co.  58  Fed. 


ADVERSE  CLAIM.  443 

An  ordinary  complaint  in  ejectment  will  sup- 
port an  adverse  claim;  and  it  may  be  amended  after 
the  expiration  of  the  thirty  days. — Deeney  v.  Min- 
eral Co.  67  Pac.  724. 

Complaint. 

As  the  complaint  is  filed  in  support  of  the  ad- 
verse it  should  conform  strictly  to  it.  It  should  not 
declare  generally  for  either  lode,  but  for  the  inter- 
ference.— Cronin  v.  Bear  Creek  do.  32  Pac.  204.  If 
it  declare  for  the  entire  lode  it  would  necessitate  a 
disclaimer  as  to  parcel  of  the  premises. 

KK.      FORM    OF   COMPLAINT. 

STATE  OF  COLORADO,  County  of  Teller:  ss. 

In  the  District  Court  of  said  County. 
Edward  F.  Bishop,  Plaintiff, 


E.  H.  Cook,  Defendant. 

The  plaintiff  complains  and  alleges  : 

1.  That  on  to  wit :  the   -first    day  of   January,    A.    D. 
1897,  and  ever  since  hitherto  he  was,  and  is,  the  owner  and 
in   actual   occupation   of   the   Elephant   Lode   Mining   Claim, 
1500  feet  in  length  by  300  feet  in  width,  situate  in  Cripple 
Creek  Mining  District,  County  and  State  aforesaid. 

2.  That  the  plaintiff  is,  and  at  all   times   mentioned 
in  this  complaint  hath  been,  a  citizen  of  the  United  States, 
(or) 

2.  That   at  and   before   the   date   last   aforesaid   the 
plaintiff  had  declared  his  intention  to  become  a  citizen  of  the 
United  States  before  a  court  of  record,  to  wit :     The  Court 
of  Common  Pleas  of  the  County  of  Allegheny,  Commonwealth 
of  Pennsylvania. 

3.  That  he  has  and  claims  the  legal  right  to  occupy 
and  possess  said  premises  and  is  entitled  to  the  possession 
thereof  by  virtue  of  full  compliance  with  the  local  laws  and 
rules   of   miners    in    said   mining   district,    the    laws    of   the 
United  States,  and  of  said  State  of  Colorado,  by  pre-emption 
(and   purchase)    and  by   actual   prior  possession,   as   a   Lode 
Mining  Claim,  located  on  the  public  domain  of  the  United 
States. — See  Code,  Sec.  267. 

4.  That  on  or  about  the  first  day  of  November,  A.  D. 
1902,  the  defendant  wrongfully  entered  upon  parcel   of  said 
claim,   to  wit :   All  that  part  of  said  claim   which  is   inter- 
sected by  the  exterior  lines  of  Survey  Lot  No.  11310,  known 
as  the  Bear  Lode  Mining  Claim,   as  shown  by  plat  marked 
Exhibit  "B,"  filed  on  the  third  day  of  February,  A.  D.  1903, 
in  the  land  office  of  the  United  States,  at  Pueblo,  in  the  said 
State,   with   the  adverse  claim   of  the  plaintiff  against   the 
entry   of  said  survey   lot  for  patent,  such   ground  so  inter- 


444  ADVERSE  CLAIM. 

sected  being  described  as  follows:  (here  interference  should 
be  described  by  metes  and  bounds)  and  that  defendent  hath 
ever  since  hitherto  wrongfully  withheld  the  possession  of 
said  parcel  of  said  Elephant  Lode  Mining  Claim  from  the 
plaintiff  to  his  damage  in  the  sum  of  one  hundred  dollars. 

5.  That  said   adverse   claim   was   filed   in  said   Land 
Office  within  the  period  of  sixty  days  of  publication  of  the 
notice  of  application  for  patent  on  said  Bear  lode  and  this 
suit  is  brought  before  the  expiration  of  the  period  of  thirty 
days  after  the  filing  of  said  adverse  claim. 

6.  That  this  suit  is   brought   in  support   of  said  ad- 
verse   claim,    and    that    plaintiff    necessarily    disbursed,    ex- 
pended and  paid  out  the  sum  of  twenty-five  dollars  for  plats, 
abstracts  and  copies  of  papers  filed  in  said  land  office  with 
his   said  adverse   claim,   and  also  a   reasonable   counsel   fee, 
to  wit :     fifty  dollars,  for  the  expense  of  preparing  his  said 
adverse  claim. 

Wherefore  plaintiff  prays  judgment  against  the  defend- 
ant : 

1.  For  the  recovery   of  possession  of  said  parcel    of 
said  Elephant  Lode  Mining  Claim. 

2.  For  the  sum  of  one  hundred  dollars  damages. 

3.  For  the  sum    of  seventy-five   dollars   expended    in 
support   of  said  adverse   claim. 

4.  For  costs  of  suit.  D   p   Howardt 

Attorney  for  Plaintiff. 

Add  verification  if  desired;  but  in  actions  of 
ejectment,  trespass,  etc.,  the  practice  of  verifying 
the  pleadings  ought  to  be  discouraged. 

Averment  of  Citizenship. 

It  has  become  the  practice  to  aver  the  citizen- 
ship of  the  parties  in  their  respective  pleadings. 
The  forms  above  given  contain  such  allegation,  and 
if  issue  is  taken  on  it  the  fact  must  be  proved. — 
Strickley  v.  Hill,  62  Pac.  894.  See  Citations  p.  283. 

We  have  always  expressed  the  opinion  that  in 
the  judicial  proceeding  there  ought  to  exist  in  this 
as  in  other  cases  the  presumption  of  citizenship, 
while  in  the  land  office  proper  it  is  a  matter  of  proof, 
required  both  from  applicant  and  adverse  claimant, 
to  be  shown  by  party's  affidavit. 

As  to  complaints  omitting  the  allegations  of 
paragraph  5  in  the  above  form  see  p.  315. 

Costs. 

Paragraph  6  of  the  above  form  is  based  on 
M.  A.  S.  §  700.  The  costs  in  such  section,  strictly 


ADVERSE  CLAIM.  445 

construed,  could  not  be  made  to  include  more  than 
the  expense  of  abstract,  plat  and  attorney's  fee.  It 
it  customary  between  counsel  to  concede  without 
proofs  that  $75  has  been  paid  under  this  allegation. 

Complaint  Detailing  History  of  Location. 

There  is  another  style  of  complaint  which  sets 
forth  chronologically  the  fact  of  discovery,  of  sink- 
ing the  shaft,  its  depth,  and  what  it  disclosed;  the 
placing,  of  the  location  stake,  the  marking  of  the 
claim,  and  the  record;  following  the  language  of  the 
statute  concerning  location,  etc.  But  many  claims 
are  sufficiently  valid  to  maintain  ejectment  without 
a  strict  location,  or  the  defendant  may  be  in  posi- 
tion where  he  is  estopped  from  asserting  weak  points 
in  the  plaintiff's  case.  In  any  event  such  recitals 
lead  to  cumbersome  pleadings  and  to  immaterial  is- 
sues, and  are  not  the  ultimate  facts  required  to  be 
stated  in  code  pleading. 

General  allegations  of  title  are  sufficient. — 
Rough  v.  Simmons,  15  M.  R.  298.  But  the  complaint 
sustained  in  that  case  is  the  extreme  of  loose  plead- 
ing. 

LL.     ANSWER. 

STATE  OF  COLORADO,  County  of  Teller:  ss. 

In  the  District  Court  of  said  County. 
Edward  F.  Bishop,  Plaintiff, 

v. 
E.  H.  CooTc,  Defendant. 

Defendant  answering  the  complaint  says  : 
For   a  first  defense : 

1.  He  denies  that  on  the  date  charged   in  complaint 
or  at  any   time   the   plaintiff  was   or   is   the   owner    or  was 
in  the  occupation,  actual  or  otherwise,  of  the  Elephant  Lode 
Mining  Claim  described  in  said  complaint. 

2.  He  admits    (or  denies)    that  the  plaintiff  is  a  citi- 
zen of  the  United   States. 

3.  Defendant  denies  that  plaintiff  has  or  claims  the 
legal  right  to  occupy  and  possess  said  premises  or  is   enti- 
tled to  the  possession  thereof,  and  denies  that  he  hath  com- 
plied with  the  local  laws  or  rules  of  miners  in  said  Cripple 
Creek   Mining   District,   the   laws    of   the   United    States,    or 
of  said  State  of  Colorado,  in  the  pre-emption,  discovery,  or 
location  of  said  socalled  Elephant  Lode  Mining  Claim. 

4.  Defendant  denies  that  at  the  time  charged  in  par- 
agraph  four    of   complaint,    or   at    any   time,    the    defendant 


446  ADVERSE  CLAIM. 

wrongfully  entered  upon  the  parcel  of  said  claim  described 
in  said  paragraph  or  any  part  thereof,  or  that  he  hath  ever 
since  hitherto,  or  at  any  time,  wrongfully  withheld  posses- 
sion of  said  premises  from  the  plaintiff,  and  denies  that  the 
plaintiff  is  damaged  in  the  sum  of  $100  or  in  any  sum,  or 
at  all. 

5.  Defendant  admits  the  allegations  of  paragraphs 
five  and  six  of  complaint. 

For  a  second  defense,  defendant  says  : 

1.  That  he  is  a  citizen  of  the  United  States,  and  that 
ever  since,   to   wit :   the  first  day   of  January,  1897,  he  was 
and  is  the  owner  and  in  actual  occupation  of  the  Bear  Lode 
Mining  Claim,  1500  feet  in  length  by  300  feet  in  width,  sit- 
uate   in    said    Cripple    Creek    Mining    District,    County    and 
State  aforesaid. 

2.  That  he  has  and  claims  the  legal  right  to  occupy 
and  possess  said  Bear  Lode  Mining  Claim,   and  is   entitled 
to  the  possession  thereof  by  virtue  of  full  compliance  with 
the  local  laws  and  rules  of  miners  in  said  mining  district, 
the  laws  of  the  United  States  and  of  said  State  of  Colorado, 
by  pre-emption    (and  purchase)    and  by  actual  prior  posses- 
sion as  a  lode  mining   claim   located  on   the  public  domain 
of  the  United  States. 

3.  And  that  the  premises  sued  for  in  said  complaint 
are  parcel  of  said  Bear  Lode  Mining  Claim,  the  property  of 
this  defendant.  Emilio  D.  DeSoto, 

Attorney  for  Defendant. 

A  Replication  Must  Be  Filed  to  such  second  de- 
fense or  the  defendant  will  be  entitled  to  judgment. — 
Newman  v.  Newton,  14  Fed.  634.  But  if  parties  go 
to  trial  on  the  merits,  defendant  will  be  assumed  to 
have  waived  this  right. — Quimby  v.  Boyd,  8  Colo.  19rf. 
And  in  Wyoming,  in  7&a  v.  Central  Ass'n,  40 
Pac.  527;  42  Pac.  20,  the  court  took  the  very  tenable 
position  that  the  second  defense  was  only  in  effect  a 
traverse  of  the  complaint  and  did  not  require  any 
replication. 

The  Verdict  should  show  that  the  winning  party 
is  entitled  to  possession  by  virtue  of  making  a  valid 
location  of  the  claim. — Burke  v.  McDonald,  33  Pac. 
49;  17  M.  R.  — .  It  should  of  course  comply  with  all 
mandatory  requirements  of  the  code  of  the  State 
where  tried.  But  as  it  has  been  very  rightly  held  that 
neither  party  is  required  in  the  adverse  suit  to  show 
that  he  has  done  everything  entitling  to  patent  (Doe 
v.  Waterloo  Co.  70  Fed.  456),  and  the  National  Supreme 
Court  upholds  a  general  verdict  for  either  party 


ADVERSE  CLAIM.  447 

• 

(Bennett  v.  Harkrader,  158  U.  8.  441 ),  it  would  seem 
that  such  strictness  as  was  insisted  on  in  McGinnis 
v.  Egbert,  15  M.  R.  329,  and  Manning  v.  Strehlow,  11 
Colo.  451,  ought  not  now  to  be  required. 

MM.      VERDICT   FOR   PLAINTIFF. 

We,  the  jury,  find  the  issues  in  favor  of  the  plaintiff, 
and  that  he  is  the  owner  by  discovery  (or  purchase)  and 
location  and  has  established  his  right  to  the  possession  and 
occupancy  of  the  premises  described  and  claimed  in  the 
complaint,  to  wit:  All  that  part  of  the  Elephant  Lode  Mining 
Claim  covered  by  the  survey  of  the  Bear  Lode  Mining  Claim , 
Survey  Lot.  No.  11310;  and  that  he,  the  plaintiff,  is  such 
owner  and  entitled  to  recover  said  premises  of  and  from 
the  defendant  by  virtue  of  full  compliance  with  the  stat- 
utes of  the  United  States  and  of  the  State  of  Colorado 
in  the  discovery  and  location  of  said  Elephant  Lode  Mining 
Claim.  And  that  he  expended  and  should  recover  from  the 
defendant  the  sum  of  seventy-five  dollars  expenses  and  coun- 
sel fee  as  charged  for  in  complaint. 

NN.       VERDICT    FOR    DEFENDANT. 

We,  the  jury,  find  the  issues  in  favor  of  the  defend- 
ant, and  that  he  is  the  owner  by  discovery  (or  purchase) 
and  location  and  has  established  his  right  to  the  posses- 
sion and  occupancy  of  the  premises  described  and  claimed 
in  the  answer,  to  wit :  The  Bear  Lode  Mining  Claim,  Survey 
Lot  No.  11,310,  and  that  he,  the  defendant,  is  such  owner 
by  virtue  of  full  compliance  with  the  statutes  of  the  United 
States  and  of  the  State  of  Colorado  in  the  discovery  and 
location  of  said  Bear  Lode  Mining  Claim. 

The  above  forms  comply  with  Section  269  of  the 
Code  and  with  other  points  peculiar  to  an  adverse 
suit,  as  suggested  in  said  decisions  of  the  Supreme 
Court. 

Rulings  in  Ejectment  Supporting  Adverse. 

An  adverse  claim  may  show  that  the  location  ad- 
versed  is  invalid  by  reason  of  the  existence  of  a 
third  claim  in  which  neither  party  has  any  interest. 
— Harrington  v.  Chambers,  1  Pac.  362.  Affirmed,  111 
V.  S.  350,  but  with  only  a  general  reference  to  this 
point  in  the  last  paragraph.  To  the  contrary  seems 
Strepey  v.  Stark,  7  Colo.  614;  17  M.  R.  28.  See 
EJECTMENT,  p.  314. 

Declarations  of  a  locator  may  be  given  in  evi- 
dence to  dispute  his  title. — Harrington  v.  Chambers, 


448  ADVETISE  CLAIM. 

• 

supra;  Muldoon  v.  Brown,  59  Pac.  720.  But  not  ad- 
missions made  after  he  has  parted  with  his  title. — 
McGinnis  v.  Egbert,  15  M.  R.  329. 

Diligent  Prosecution, 

The  Land  Office  cannot  adjudicate  upon  the 
question  whether  the  suit  is  being  prosecuted  with 
due  diligence. — Richmond  Co.  v.  Rose,  114  U.  8.  576; 
8.  C.  27  Pac.  1105. 

Dismissal  and  Reinstatement. 

Jurisdiction  once  attached  remains  and  where 
default  was  had,  but  the  cause  reinstated,  the  ad- 
verse holds,  notwithstanding  certificate  of  no  suit 
pending  had  been  filed  during  the  interval.—/  L.  D. 
542;  Rev.  Ed.  539.  Nor  will  a  Receiver's  receipt  ob- 
tained in  such  interval  be  allowed  in  evidence. — Mc- 
Evoy  v.  Hyman,  15  M.  R.  300;  Deeney  v.  Mineral 
Co.  67  Pac.  724. 

Waiver — Withdrawal  or  Failure  to  Support. 

An  adverse  claim  may  be  withdrawn  either  be- 
fore or  after  bringing  the  suit  thereby  waiving  all 
rights  claimed.— 4  L.  D.  117;  29  L.  D.  89.  Or  by  vol- 
untarily dismissing  the  suit. — 4  L.  D.  273.  And 
when  suit  is  dismissed  certificate  to  that  effect  must 
be  filed.  Upon  failure  to  issue  summons  within  the 
period  required  by  the  code  the  complaint  may  be 
dismissed. — Steves  v.  Carson,  21  Colo.  280;  and  a 
second  suit  cannot  afterwards  be  brought. — Id.  42 
Fed.  821.  See  Rules  86,  87. 

Two  Suits. 

Where  there  was  one  adverse  claim  filed  by  two 
co-owners,  each  of  whom  brought  a  separate  suit  in 
different  courts,  one  of  which  suits  was  dismissed, 
although  the  department  held  that  the  bringing  of 
the  two  suits  was  useless  and  irregular  they  refused 
to  allow  entry  until  both  were  disposed  of. — 22  L.  D. 
343. 

The  Court  Trying  the  Adverse  Suit  may  give  full 
relief  and  if  necessary  restore  the  successful  party  to 
possession. — Silver  City  Co.  v.  Lowry,  57  Pac.  11. 


ADVERSE  CLAIM.  449 

Defects  in  the  Adverse  Claim  are  not  material 

to  the  issue  at  law  between  the  parties,  and  are  for 
departmental  consideration  only. — Rose  v.  Richmond 
Go.  17  Nev.  25;  Quigley  v.  Gillett,  85  Pac.  1040. 

Title  in  Neither  Party. 

That  if,  in  any  action  brought  pursuant  to  section 
twenty-three  hundred  and  twenty-six  of  the  Revised  Statutes, 
title  to  the  ground  in  controversy  shall  not  be  established 
by  either  party,  the  jury  shall  so  find,  and  judgment  shall 
be  entered  according  to  the  verdict.  In  such  case  costs 
shall  not  be  allowed  to  either  party,  and  the  claimant  shall 
not  proceed  in  the  land-office  or  be  entitled  to  a  patent  for 
the  ground  in  controversy  until  he  shall  have  perfected  his 
title. — A.  C.  March  S}  1881. 

The  rulings  under  the  above  Act  are,  that  each 
party  is  practically  a  plaintiff,  and  must  show  his 
title;  but  that  if  neither  show  title  the  verdict  must 
be  special — which  is  an  assertion  that  the  title  re- 
mains in  the  United  States,  so  far,  at  least,  as  the 
litigating  parties  are  concerned. — Jackson  v.  Roby, 
109  U.  8.  440;  Rosenthal  v.  Ives,  15  M.  R.  324.  See 
P.  446. 

The  effect  of  the  Act  is  to  prevent  a  recovery 
upon  possession  alone  in  ejectment  supporting  ad- 
verse.— Becker  v.  Pugh,  15  M.  R.  304. 

After  judgment  of  title  in  neither  party  the  Land 
Office  will  not  allow  the  application  to  be  perfected. 
— Newman  v.  Barnes,  23  L.  D.  257. 

It  has  been  held  that  the  Act  does  not  prevent 
a  non-suit  against  Plaintiff. — Kirk  v.  Meldrum,  28 
Colo.  459. 

Entry  of  the  Area  Not  in  Dispute. 

The  Department  has  ruled  that  where  the  ad- 
verse covers  only  parcel  of  the  applying  claim  the 
applicant  may  go  to  entry  and  patent  on  the  area  not 
in  controversy  and  without  waiver  of  any  rights,  de- 
fend against  the  contest  of  the  adverse  claimant  in 
the  suit  supporting  adverse. — 2  L.  D.  744;  22  L.  D. 
343. 

Where  the  discovery  shaft  is  upon  the  ground 
excluded  in  favor  of  a  prior  Survey,  such  fact  does 
not  invalidate  the  application  where  the  applicant 


450  ADVERSE  CLAIM. 

makes  good  his  adverse  for  the  excluded  area. — 28 
L.  D.  321. 

Proceedings  After  Determination  of  Suit. 

The  Land  Office  requirements  in  such  case  are 
stated  in  Rule  8-5. 

If  the  judgment  is  in  favor  of  the  defendant  (the 
applicant)  he  files  a  certified  copy  of  the  judgment 
roll  (14  L.  D.  308),  and  is  allowed  to  pay  for  and  en- 
ter the  claim  or  so  much  thereof  as  has  been 
awarded  to  him. 

If  the  judgment  is  in  favor  of  the  adversing 
party,  he  files  certified  copy  of  the  judgment  roll,  and 
must  obtain  and  file  plat  and  survey,  and  file  full  set 
of  final  entry  papers;  in  fact,  he  must  perform  what- 
ever is  required  of  an  applicant,  except,  of  course, 
the  posting  and  publication. 

The  adverse  claimant  in  such  proceeding  enters 
only  the  area  in  conflict  recovered  by  his  judgment. 
—27  L.  D.  375.  If  he  desire  to  patent  his  full  claim 
he  must  apply  in  all  respects,  including  posting  and 
publication,  as  an  original  applicant. 

In  such  case  where  he  has  already  begun  his  ap- 
.  plication  and  excluded  defendant's  prior  survey,  the 
judgment  roll  shows  him  entitled  to  and  he  is  allowed 
to  enter  such  ground,  although  originally  excluded. 
If  he  does  not  begin  his  application  until  after  he  has 
obtained  judgment,  his  application  will  include  the 
areas  formerly  in  conflict. 

Where  the  suit  is  compromised,  if  there  is  only 
one  adverse,  it  is  more  convenient  to  dismiss  the  suit, 
taking  deed  or  bond  for  deed  from  the  applicant.  In 
such  case,  upon  filing  certificate  of  dismissal,  the 
original  survey  goes  to  patent  without  further  com- 
plications, and  the  defendant  can  convey  after  entry 
according  to  the  terms  of  settlement. 

But  in  all  this  class  of  cases,  and  especially  where 
there  are  two  or  more  adverses,  legal  counsel  should 
be  taken.  A  settlement  between  the  applicant  and 
one  adversor  cannot  bind  a  second  adversor;  there 
may  be  questions  of  retaining  end  lines,  or  the  dis- 


ADVERSE  CLAIM.  451 

covery  shaft,  or  patent  improvements;  and  it  may  be 
very  material  as  affecting  extralateral  rights  or  on 
the  issue  of  priority,  as  to  which  lode  takes  the  pat- 
ented title. 

An  adjudication  of  priority  in  favor  of  part  of  a 
lode  seems  to  be  an  adjudication  of  priority  on  the 
question  arising  in  any  later  form  of  controversy 
between  the  same  lodes. — Last  Chance  Co.  v.  Tyler  Co. 
157  U.  8.  683.  Bunker  Hill  Co.  v.  Empire  Co.  109  Fed. 
538;  114  Fed.  420. 

Annual  Labor  Pending  the  Trial. 

In  the  matter  of  the  Marburg  Lode,  30  L..  D.  202, 
the  department  held  that  where  entry  has  been  stayed 
by  the  operation  of  a  protest  or  adverse,  a  delay  not 
chargeable  to  the  applicant,  the  annual  labor  need 
not  be  kept  up.  That  it  will  not  recognize  as  protest- 
ant  a  relocation  made  during  such  interval,  based  on 
non-performance  of  labor.  If  such  be  the  correct 
ruling  we  cannot  see  why  it  should  not  also  apply 
to  the  adversing  claim.  Questions  of  procedure  in 
the  Land  Office  are  for  that  office  to  decide.  Con- 
struction of  statutes  denning  conditions  of  title  are 
for  the  courts.  The  question  is  so  nearly  one  of  the 
latter  class  that  in  the  absence  of  judicial  decision 
to  the  same  effect  it  is  wholly  unsafe  to  neglect  the 
annual  labor  in  reliance  on  this  case. — See  Rule  55;  31 
L.  D.  69. 

Agreement  to  Not  Adverse. 

When  contesting  claimants  agree  with  the  appli- 
cants to  file  no  adverse  in  consideration  of  the  appli- 
cants undertaking  to  convey  the  title  to  the  ground 
in  conflict  or  some  other  interest  in  the  claim  when 
entry  is  made  or  patent  issues — such  agreement 
should  be  formally  reduced  to  writing  under  signa- 
ture and  seal.  Such  a  contract  is  not  against  public 
policy  and  will  be  enforced. — St.  Louis  Co.  v.  Montana 
Co.  171  U.  S.  650.  In  Ducie  v.  Ford,  138  U.  S.  587,  a 
case  of  this  kind  but  the  contract  verbal,  it  was  held 
to  be  within  the  Statute  of  Frauds,  i.  e.,  a  contract 
void  unless  written,  and  the  plaintiff  went  without 


452  PROTEST. 

relief.  The  decision,  however,  is  largely  based  on 
asserted  defects  in  the  pleadings  and  can  hardly  be 
considered  as  holding  .that  so  gross  an  instance  of 
wrong  would  be  in  all  cases  shielded  by  that  statute. 


PROTEST. 


The  office  of  a  protest  is  to  show  that  no  patent, 
such  as  applied  for,  should  issue — as  where  a  mill  site 
patent  is  asked  for  on  mineral  ground. 

.  Or  that  it  should  not  issue  to  the  particular  appli- 
cant by  reason  of  some  defect  of  person,  as  that  the 
applicant  is  an  alien  corporation;  or  for  failure  to 
comply  with  the  practice  of  the  department  in  some 
serious  particular.  It  is  not  safe  to  rely  on  the  pre- 
sumption that  the  Land  Office  will  of  its  own  motion 
observe  every  departure  from  its  own  rules. 

The  protestant  can  never  by  his  protest  acquire 
title.  He  can  at  most  defeat  the  efforts  of  the  appli- 
cant. But  if  the  protest  be  sustained  and  the  appli- 
cant compelled  to  begin  de  novo,  as  for  instance 
where  the  irregularity  pointed  out  to  the  department 
is  a  short  publication  and  he  is  required  to  go  back 
to  that  point  and  republish — upon  the  new  proceed- 
ings or  the  republication  the  protestant  has  the  oppor- 
tunity to  file  his  adverse  claim.  Any  stranger  to  the 
original  application  would  have  the  same  right. — 23 
L.  D.  395. 

The  fact  that  the  protestant  is  or  claims  to  be 
the  real  owner,  or  to  have  the  better  title,  has  its 
place  in  an  adverse  and  is  not  a  ground  of  protest. — 
22  L.  D.  624;  but  it  should  be  averred  to  give  stand- 
ing to  the  protestant. 

A  protestant  claiming  an  interest  is  allowed  the 
right  of  appeal.— 8  L.  D.-122;  16  Id.  532;  29  Id.  230. 
But  if  he  has  no  such  interest  he  is  regarded  as  a 
mere  amicus  curiae  and  has  no  such  right. — 8  L.  D. 
439.  A  party  having  no  surface  conflict  is  not  such  a 


PROTEST.  .    453 

party  in  interest  as  to  have  the  right  to  appeal. — 6 
D.  D.  318;  19  Id.  356.  Nor  has  a  party  whose  only 
claim  is  by  location  made  after  the  protest  was  filed. 
— 19  L.  D.  356. 

The  department  will  entertain  a  protest  as  pro- 
vided in  R.  S.  Sec.  2325,  showing  that  "the  applicant 
has  failed  to  comply  wth  the  terms  of  this  chapter" — 
that  is,  has  made  a  substantially  irregular  step  in 
his  location  or  in  his  proceedings  to  obtain  patent,  as 
for  instance  that  he  has  not  disclosed  mineral  in  his 
discovery  shaft  or  elsewhere  within  the  lines  of  the 
claim  (2  L.  D.  743;  17  Id.  112;  27  Id.  396},  or  that  the 
publication  was  defective,  the  $500  improvements  not 
made  (19  D.  D.  356;  27  Id.  396),  or  any  other  serious 
want  of  conformity  to  the  law  or  to  the  Land  Office 
regulations.— 16  L.  D.  532. 

But  the  fact  that  the  discovery  is  not  upon  the 
public  domain  because  upon  a  location  of  the  pro- 
testant's  of  alleged  earlier  date  and  other  like  points, 
which  if  availed  of  by  adverse  would  have  shown 
better  title  in  the  protestant,  will  not  be  considered  as 
grounds  of  protest.— 22  L.  D.  624;  27  Id.  191;  26  Id. 
580;  30  Id.  67. 

The  Test  Between  the  Two  Classes  of  Cases  Is : 
That  where  a  defect  exists  which  is  a  matter  of  pub- 
lic interest,  and  which  shows  that  the  applicant 
has  not  proceeded  regularly  as  to  the  United  States 
or  as  to  the  entire  body  of  prospectors  who  are  en- 
titled to  see  that  all  are  required  to  proceed  under 
like  restrictions,  a  protest  will  be  considered;  but 
where  the  point  is  one  of  interest  only  as  between  the 
applicant' and  the  protestant,  or  as  between  the  appli- 
cant and  a  third  party  who  is  not  complaining  (21 
L.  D.  30;  Mod.  on  Review,  Id.  544),  the  protestant  can- 
not by  his  protest  claim  the  right  to  litigate  in  this 
form  what  he  should  have  contested  on  the  adverse. 


454     .  PROTEST. 

FORM   OF  PROTEST. 

In  the  matter  of  the  Application  of  The  Anaconda  Mining 
Company  for  patent   on  the  Martha  Becker  Mill    Site, 
Survey  Lot  No.  930  B.  Pueblo  Land  Office,  Colorado. 
*To  the   Register  and  Receiver  of  said  United  States  Land 
Office  : 

Your  protestant,  C.  H.  Aldrich,  whose  postoffice  ad- 
dress is  Chicago,,  Illinois,  a  citizen  of  the  United  States  over 
the  age  of  twenty-one  years,  hereby  respectfully  protests 
against  the  entry  by,  and  issuance  of  patent  to,  The  Ana- 
conda Mining  Company,  on  their  so-called  mill  site  styled 
the  Martha  Becker  Mill  Site,  Survey  Lot  No.  930  B,  situate 
in  Cripple  Creek  Mining  District,  County  of  Teller,  State  of 
Colorado.  Because : 

1.  The  said  so-called  mill  site  is  not  and  never  was 
used  or  occupied  in  connection  with  the  said  Martha  Becker 
Lode  for  mining   or   milling  purposes. 

2.  It  is  not  and  never  was   used  or  occupied   by   the 
applicant    or    its   grantors    in    connection    with    any    lode   or 

'  by  itself  for  mining  or  milling  purposes. 

3.  There   are   no   improvements   and  never  have  been 
any   improvements  upon   said  mill  site   except  the   improve- 
ments made  by  your  protestant. 

4.  The    said   mill   site    is    below   the   mill    and    below 
the  tailrace  of  the  mill  of  the  said  applicant  company  and 
has  never  been  and  is  not  now  parcel   of  nor   appurtenant 
to  said  mill,  nor  included  within  the  mill  site  on  which  said 
mill  stands. 

5.  Said   so-called   mill    site   or   a   great   part   thereof, 
the    conflicting    area    being    shown    by    the    plat    hereto    at- 
tached duly  certified   (see  p.  #4),  was  in  good  faith  located 
as   the  Lion  Mill   Site  by  your   protestant  in  the  year  1897 
and   long   prior   to   the   said   application    and   is   now   being 
used  for  mining  purposes  in  connection  with  the  Lion  Lode, 
lying  immediately  above  the  said  mill  site,  owned  and  being 
worked  by  your  protestant. 

(6  etc.  ;  7  etc.)  Add  or  substitute  other  reasons  ac- 
cording to  the  facts,  e.  y. — the  publication  was  not  posted 
on  the  Land  Office  Bulletin  during  the  period  of  newspaper 
publication — the  location  of  said  mill  site  is  on  mineral  land 
and  land  more  valuable  for  mineral  than  for  mill  site  pur- 
poses— etc. 

Wherefore  for  these  causes  as  verified  by  the  affidavit 
of  your  protestant  attached  hereto,  and  as  well  for  the 
want  of  proper  proof  that  the  said  so-called  Martha  Becker 
Mill  Site  is  being  "used  or  occupied  by  the  proprietor  of 
the  said  Martha  Becker  Lode  for  mining  or  milling  pur- 
poses," as  required  by  the  terms  of  section  2337  of  the  Re- 

*In  the  General  Land  Office  the  address  is  "To  The 
Honorable  the  Commissioner  of  the  General  Land  Office." 
In  the  Department  "To  The  Honorable  the  Secretary  of  the 
Interior." 


TIDE  LANDS.  455 

vised  Statutes  of  the  United  States,  and  that  the  applicant 
has  otherwise  failed  to  comply  with  the  terms  of  Chapter 
6  of  Title  XXXII  of  said  Revised  Statutes,  entitled  "Min- 
eral Lands  and  Mining  Resources,"  your  petitioner  protests 
as  aforesaid. 

P.  J.  DUGAN,  Pueblo.  C.  H.  ALDRICH. 

Attorney  for  Protestant. 

STATE  OF  COLORADO,  ,County  of  Teller:  ss. 

Before  me,  the  subscriber,  E.  H.  Qniber,  a  Notary  Pub- 
lic in  and  for  said  County,  personally  appeared  G.  H. 
Aldrich,  who,  being  duly  sworn,  saith  that  he  is  the  pro- 
testant  named  in  the  foregoing  protest  subscribed  by  him  ; 
that  he  has  read  the  same  and  knows  the  contents  thereof, 
and  that  the  same  and  the  matters  and  things  therein  stated 
are  true.  C.  H.  ALDRICH. 

Sworn  and  subscribed  before  me  this  10th  day  of  Jan- 
uary, A.  D.  1903.  E.  H.  Gniber, 

[SEAL.]  Notary  Public. 


TIDE  LANDS. 


Minerals  lying  between  high  and  low  tide,  as 
well  as  under  the  sea,  in  a  Territory,  belong  to  the 
National  Government,  but  they  are  not  considered 
part  of  the  public  domain  open  to  the  settler  or  occu- 
pant under  any  form  of  entry.  Upon  admission  of 
the  Territory  this  sovereignty  passes  to  the  State 
Government.— 29  L.  D.  396;  SMvely  v.  Bowlby,  152 
U.  8.  1. 

By  the  Alaska.  Act  (p.  456)  the  tide  lands  of 
Bering  Sea  are  opened  to  exploration  and  mining,  to 
wit:  the  lands  between  high  and  low  tide,  under 
miners'  rules,  and  the  lands  below  low  tide  under 
rules  to  be  prescribed  by  the  Secretary  of  War.  Such 
latter  rules  are  limited  to  "the  preservation  of  order 
and  the  protection  of  the  interest  of  commerce"  and 
we  see  no  reason  why  the  rules  generally  of  a  dis- 
trict on  the  beach  should  not  extend  to  ground  be- 
low low  tide  on  all  points  not  covered  by  the  Secre- 
tary's rules. 

The  Act  contemplates  only  the  temporary  work- 
ing of  this  class  of  claims,  not  providing  for  patent 


456  ALASKA. 

to  issue  at  any  period.  Except  as  to  patenting,  the 
U.  S.  Mining  Acts  are  extended  to  them,  so  far  as 
applicable,  but  the  mining  districts  are  especially  em- 
powered to  make  rules  as  to  record,  and  impliedly 
as  to  notice,  staking,  size  of  placer  claims,  labor, 
representation  and  all  other  points  not  controlled  by 
the  Acts  of  Congress.  This  doubtless  includes  the 
right  to  restrain  or  control  the  location  and  repre- 
sentation of  claims  by  agency. 

At  other  points,  on  shore  of  either  State  or  Ter- 
ritory, mining  by  the  first  occupant  is  a  trespass  as 
against  the  Government,  but  no  third  party  has  the 
right  to  complain. 

The  rights  of  parties  mining  on  such  premises 
depend  on  priority  of  possession,  and  those  rules  of 
law  which  govern  that  class  of  cases  where  the  real 
owner  is  not  asserting  his  title  but  allows  to  third 
parties  the  present  enjoyment  of  the  use,  by  suf- 
ferance. 

On  July  14,  1900,  General  Order  No.  18,  was  is- 
sued by  Brig.  Gen.  Randall  under  instructions  from 
the  Hon.  Secretary,  on  the  matter  of  dredges  and 
recognizing  priorities  of  the  first  claimant  as  stated 
in  the  preceding  paragraph. 


ALASKA. 


The  following  are  the  clauses  of  the  Alaska  Act 
of  June  6,  1900,  31  Stat.  L.  321,  material  to  mining 
claimants.  All  the  special  clauses  as  to  aliens  were 
rejected,  and  the  status  of  mining  titles  is  left  the 
same  as  in  other  States  and  Territories  where  there 
are  few  or  no  statutory  prescriptions,  the  Act  evi- 
dently contemplating  control  by  district  rules  when 
necessary  or  desired  by  the  miners  to  supplement 
the  general  terms  of  the  mining  Acts. 

Section  13,  Title  I,  provides  for  the  division  of 
the  Territory  into  three  "recording  divisions,"  the 


ALASKA.  457 

bounds  of  which  were  fixed  by  an  act  approved  June 
13,  1902.— Acts  57th  Cong.  p.  385. 

The  first  division  includes  all  the  territory  East 
of  the  141st  degree  of  Longitude. 

The  second  includes  all  territory  W.,  N.  W.  and 
N.  of  a  line  commencing  at  mouth  of  Colville  River; 
follow  up  the  river  to  where  it  crosses  the  154th 
meridian  line  the  second  time;  follow  said  meridian- 
S.  to  west  side  of  Tohtankella  Mtn.  and  the  Yukon 
River;  thence  Southeasterly  to  western  side  of  Mt. 
McKinley;  thence  Southwesterly  to  most  northern 
point  of  Lake  Clark;  thence  along  N.  W.  side  of  Lake 
Clark  to  60th  degree  latitude;  thence  West  along- 
said  degree  to  Kuskokwim  Bay,  including  the  main- 
land West  of  said  Bay  and  all  islands  N.  of  59th  de- 
gree. 

The  third  division  includes  "the  rest  of  the  Ter- 
ritory. 

These  are  to  be  subdivided  into  "recording  dis- 
tricts," and  for  each  district  a  recorder  has  been  or 
is  to  be  appointed. 

The  clerk  of  the  court  is  ex  ojficio  recorder  of  all 
that  part  of  any  recording  division  not  set  off  into 
recording  districts. 

Record  of  Claims. 

Sec.  15. —  *  *  *  Notices  of  location  of  mining 
claims  shall  be  filed  for  record  within  ninety  days  from  the 
date  of  the  discovery  of  the  claim  described  in  the  notice, 
and  all  instruments  shall  be  recorded  in  the  recording  dis- 
trict in  which  the  property  or  subject-matter  affected  by 
the  instrument  is  situated,  and  where  the  property  or  sub- 
ject-matter is  not  situated  in  any  established  recording  dis- 
trict the  instrument  affecting  the  same  shall  be  recorded  in 
the  office  of  the  clerk  of  the  division  of  the  court  having 
supervision  over  the  recording  division  in  which  such  prop- 
erty or  subject-matter  is  situated. 

District  Rules— Old  Records. 

Sec.  16. —  *  *  *  Miners  in  any  organized  mining 
district  may  make  rules  and  regulations  governing  the  record- 
ing of  notices  of  location  of  mining  claims,  water  rights, 
flumes  and  ditches,  mill  sites  and  affidavits  of  labor,  not  in 
conflict  with  this  Act  or  the  general  laws  of  the  United 
States  ;  and  nothing  in  this  Act  shall  be  construed  so  as  to 
prevent  the  miners  in  any  regularly  organized  mining  district 
not  within  any  recording  district  established  by  the  court 


458  ALASKA. 

from  electing  their  own  mining  recorder  to  act  as  such 
until  a  recorder  therefor  is  appointed  by  the  court :  Provided 
further.  All  records  heretofore  regularly  made  by  the  United 
States  commissioner  at  Dyea,  Skagway,  and  the  recorder 
at  Douglas  City,  not  in  conflict  with  any  records  regularly 
made  with  the  United  States  commissioner  at  Juneau,  are 
hereby  legalized.  And  all  records  heretofore  made  in  good 
faith  in  any  regularly  organized  mining  district  are  hereby 
made  public  records,  and  the  same  shall  be  delivered  to 
.the  recorder  for  the  recording  district  including  such  min- 
ing district  within  six  months  from  the  passage  of  this  Act. 

Mining  Acts  Extended — Tide  Lands  and  Sub-Sea 
Minerals. 

Sec.  26. — The  laws  of  the  United  States  relating  to. 
mining  claims,  mineral  locations,  and  rights  incident  thereto 
are  hereby  extended  to  the  district  of  Alaska ;  Provided, 
That  subject  only  to  such  general  limitations  as  may  be 
necessary  to  exempt  navigation  from  artificial  obstructions 
all  land  and  shoal  water  between  low  and  mean  high  tide 
on  the  shores,  bays,  and  inlets  of  Bering  Sea,  within  the 
jurisdiction  of  the  United  States,  shall  be  subject  to  explo- 
ration and  mining  for  gold  and  other  precious  metals  by 
citizens  of  the  United  States,  or  persons  who  have  legally 
declared  their  intentions  to  become  such,  under  such  rea- 
sonable rules  and  regulations  as  the  miners  in  organized  min- 
ing districts  may  have  heretofore  made  or  may  hereafter 
make  governing  the  temporary  possession  thereof  for  ex- 
ploration and  mining  purposes  until  otherwise  provided  by 
law  ;  Provided  further,  That  the  rules  and  regulations  es- 
tablished by  the  miners  shall  not  be  in  confliflct  with  the 
mining  laws  of  the  United  States  ;  and  no  exclusive  permit 
shall  be  granted  by  the  Secretary  of  War  authorizing  any 
person  or  persons,  corporation  or  company  to  excavate  or 
mine  under  any  of  said  waters  below  low  tide,  and  if  such 
exclusive  permit  has  been  granted  it  is  hereby  revoked  and 
declared  null  and  void ;  but  citizens  of  the  United  States 
or  persons  who  have  legally  declared  their  intention  to 
become  such  shall  have  the  right  to  dredge  and  mine  for 
gold  or  other  precious  metals  in  said  waters,  below  low 
tide,  subject  to  such  general  rules  and  regulations  as  the 
Secretary  of  War  may  prescribe  for  the  preservation  of  order 
and  the  protection  of  the  interests  of  commerce ;  such  rules 
and  regulations  shall  not,  however,  deprive  miners  on  the 
beach  of  the  right  hereby  given  to  dump  tailings  into  or 
pump  from  the  sea  opposite  their  claims,  except  where 
such  dumping  would  actually  obstruct  navigation,  and  the 
reservation  of  a  roadway  sixty  feet  wide,  under  the  tenth 
section  of  the  Act  of  May  fourteenth,  eighteen  hundred  and 
ninety-eight,  entitled  "An  Act  extending  the  homestead  laws 
and  providing  for  right  of  way  for  railroads  in  the  District 
of  Alaska,  and  for  other  purposes,"  shall  not  apply  to  mineral 
lands  or  town  sites. — Approved  June  6,  WOO. 


PHILIPPINE  ISLANDS.  459 

Water  Rights  and  Labor  Affidavits. 

The  Act  provides  for  the  record  of  "Notices  and 
declaration  of  water  rights"  and  "Affidavits  of  annual 
work  done  on  mining  claims" — thus  recognizing  the 
'  general  custom  as  to  such  papers,  not  prescribing 
their  form  or  effect  but  leaving  that  to  the  mining 
district  rules. — Sec.  15. 

The  coal  land  laws  are  extended  to  embrace 
Alaska  by  A.  C.  June  6,  1900—31  St.  L.  658. 

Titles  Prior  to  1900. 

From  1884  to  1900  (23  St.  L.  24)  the  Laws  of 
Oregon  so  far  as  they  covered  the  subject  were  in 
force.  Those  statutes  only  required  a  location  no- 
tice and  record  and  forbade  more  than  one  location  by 
the  same  person  on  the  same  lode.  The  universal 
terms  of  Sec.  2324  of  course  applied.  And  all  posses- 
sory claims  prior  to  the  Act  of  1884  were  validated 
by  the  Act  of  that  year. — Bennett  v.  Harkrader,  158 
u.  S.  443. 


PHILIPPINE  ISLANDS. 


An  extremely  detailed  and  complicated  mining 
code  for  the  Philippines  is  contained  in  the  Act  of 
July  1,  1902,  providing  a  temporary  government  for 
those  islands. — Acts  5Wi  Cong.  p.  697. 


460          U.  S.  STATUTES  REPEALED. 


TEXT  OF  IT.  S.  STATUTES  REPEALED. 


Sections  of  Act  of  July  26,  1866,  Repealed  by  Act 

of  May  10,  1872,  and  Not  Found  in 

the  Revised  Statutes. 

Original  License  to  Explore. 

Sec.  1. — That  the  mineral  lands  of  the  public  domain, 
both  surveyed  and  unsurveyed,  are  hereby  declared  to  be  free 
and  open  to  exploration  and  occupation  by  all  citizens  of 
the  United  States,  and  those  who  have  declared  their  in- 
tention to  become  citizens,  subject  to  such  regulations  as 
may  be  prescribed  by  law,  and  subject  also  to  the  local  cus- 
toms or  rules  of  miners  in  the  several  mining  districts,  so 
far  as  the  same  may  not  be  in  conflict  with  the  laws  of 
the  United  States. 

Improvements — Dip — Patent. 

Sec.  2. — That  whenever  any  person  or  association  of 
persons  claim  a  vein  or  lode  of  quartz,  or  other  rock  in  place, 
bearing  gold,  silver,  cinnabar,  or  copper,  having  previously 
occupied  and  improved  the  same  according  to  the  local  cus- 
tom or  rules  of  miners  in  the  district  where  the  same  is 
situated,  and  having  expended  in  actual  labor  and  improve- 
ments thereon  an  amount  of  not  less  than  one  thousand 
dollars,  and  in  regard  to  whose  possession  there  is  no  con- 
troversy or  opposing  claim,  it  shall  and  may  be  lawful 
for  said  claimant  or  association  of  claimants  to  file  in  the 
local  land  office  a  diagram  of  the  same,  so  extended  laterally 
or  otherwise  as  to  conform  to  the  local  laws,  customs,  and 
rules  of  miners,  and  to  enter  such  tract  and  receive  a  patent 
therefor,  granting  such  mine,  together  with  the  right  to 
follow  such  vein  or  lode  with  its  dips,  angles,  and  vari- 
ations, to  any  depth,  although  it  may  enter  the  land  ad- 
joining, which  land  adjoining  "shall  be  sold  subject  to  this 
condition. 

Application  for  Patent. 

Sec.  3. — That  upon  the  filing  of  the  diagram  as  pro- 
vided in  the  second  section  of  this  act,  and  posting  the  same 
in  a  conspicuous  place  on  the  claim,  together  with  a  notice 
of  intention  to  apply  for  a  patent,  the  register  of  the  land 
office  shall  publish  a  notice  of  the  same  in  a  newspaper  pub- 
lished nearest  to  the  location  of  said  claim,  and  shall  also 
post  such  notice  in  his-  office  for  the  period  of  ninety  days  ; 


U.  S.  STATUTES  REPEALED.  461 

and  after  the  expiration  of  said  period,  if  no  adverse  claim 
shall  hav£  been  filed,  it  shall  be  the  duty  of  the  surveyor- 
general,  upon  application  of  the  party,  to  survey  the  prem- 
ises and  make  a  plat  thereof,  indorsed  with  his  approval, 
designating  the  number  and  description  of  the  location,  the 
value  of  the  labor  and  improvements,  and  the  character  of  the 
vein  exposed  ;  and  upon  the  payment  to  the  proper  officer 
of  five  dollars  per  acre,  together  with  the  cost  of  such  sur- 
vey, plat,  and  notice,  and  giving  satisfactory  evidence  that 
said  diagram  and  notice  have  been  posted  on  the  claim  dur- 
ing said  period  of  ninety  days,  the  register  of  the  land  office 
shall  transmit  to  the  general  land  office  said  plat,  survey, 
and  description  ;  and  a  patent  shall  issue  for  the  same  there- 
upon. But  said  plat,  survey,  or  description  shall  in  no  case 
cover  more  than  one  vein  or  lode,  and  no  patent  shall  issue 
for  more  than  one  vein  or  lode,  which  shall  be  expressed  in 
the  patent  issued. 

Form  of  Survey — Length  of  Claim. 

Sec.  4. — That  when  such  location  and  entry  of  a  mine 
shall  be  upon  unsurveyed  lands,  it  shall  and  may  be  lawful, 
after  the  extension  thereto  of  the  public  surveys,  to  adjust 
the  surveys  to  the  limits  of  the  premises  according  to  the 
location  and  possession  and  plat  aforesaid,  and  the  surveyor- 
general  may,  in  extending  the  surveys,  vary  the  same  from 
a  rectangular  form  to  suit  the  circumstances  of  the  country 
and  the  local  rules,  laws,  and  customs  of  miners  :  Provided, 
That  no  location  hereafter  made  shall  exceed  two  hundred 
feet  in  length  along  the  vein  for  each  locator,  with  an  addi- 
tional claim  for  discovery  to  the  discoverer  of  the  lode, 
with  the  right  to  follow  such  vein  to  any  depth,  with  all  its 
dips,  variations,  and  angles,  together  with  a  reasonable  quan- 
tity of  surface  for  the  convenient  working  of  the  same  as 
fixed  by  local  rules  :  And  provided  further.  That  no  person 
may  make  more  than  one  location  on  the  same  lode,  and 
not  more  than  three  thousand  feet  shall  be  taken  in  any  one 
claim  by  any  association  of  persons. — See  pages  11^,  20. 

Adverse  Claims. 

Sec.  6. — That  whenever  any  adverse  claimants  to  any 
mine  located  and  claimed  as  aforesaid  shall  appear  before 
the  approval  of  the  survey,  as  provided  in  the  third  section 
of  this  act,  all  proceedings  shall  be  stayed  until  a  final  set- 
tlement and  adjudication  in  the  courts  of  competent  juris- 
diction of  the  rights  of  possession  to  such  claim,  when  a 
patent  may  issue  as  in  other  cases. — Ify  St.  L.  251. 


TEXT  OP  U.  S.  STATUTES. 


FULL  TEXT  OF  UNITED  STATES  LAWS  NOW 
IN  FORCE. 


The  text  is  taken  from  the  last  edition  "Revised 
Statutes  of  the  United  States,"  and  the  Supplement 
and  Statutes  at  Large  to  First  Session  of  57th  Con- 
gress, 1902.  This  revision  includes  the  unrepealed 
sections  of 

An  Act  granting  the  right  of  way  to  ditch  and  canal 
owners  over  the  public  lands,  and  for  other  purposes. — Ap- 
proved July  26,  1866. 

An  Act  to  amend  an  Act  granting  the  right  of  way 
to  ditch  and  canal  owners  over  the  public  lands,  and  for 
other  purposes. — Approved  July  9,  1870. 

An  act  to  promote  the  development  of  the  mining  re- 
sources of  the  United  States. — Approved  May  10,  1872. 

Commonly  called  the  "Mining  Acts,"  with  all 
their  amendments,  and  miscellaneous  sections  from 
other  Acts. 

The  sections  of  the  Act  of  1866  repealed  by  the 
Act  of  1872,  are  printed,  ante  p.  400. 

TITLE    XIII,   CHAPTER   SEVENTEEN. 

Possessory  Actions. 

Sec.  910. — No  possessory  action  between  persons,  in 
any  court  of  the  United  States,  for  the  recovery  of  any 
mining  title,  or  for  damages  to  any  such  title,  shall  be  af- 
fected by  the  fact  that  the  paramount  title  to  the  land 
in  which  such  mines  lie  is  in  the  United  States  ;  but  each 
case  shall  be  adjudged  by  the  law  of  possession. — Sec.  9,  Feb. 
27,  1865.  See  page  10. 

TITLE  XXXII,  CHAPTER   SIX. 
ENTITLED    "MINERAL   LANDS   AND    MINING    RESOURCES." 

Keserved  from  Sale  Under  the  Pre-Emption  Acts. 

Sec.  2318. — In  all  cases  lands  valuable  for  minerals 
shall  be  reserved  from  sale,  except  as  otherwise  expressly 
directed  by  law. — Sec.  5,  July  //,  1866. 

NOTE. — Bach  Statute.  State  or  Federal,  printed  in  this 
book,  has  been  compared  with  the  official  original  publica- 
tion so  as  to  have  its  exact  wording  and  punctuation. 


TEXT  OP  U.  S.  STATUTES.  463 

General  License. 

Sec.  2319. — All  valuable  mineral  deposits   in  lands  be- 
longing to  the  United  States,  both  surveyed  and  unsurveyed, 
are  hereby  declared  to  be  free  and  open  to  exploration  and 
purchase,  and  the  lands  in  which  they  are  found  to  occupa- 
tion and  purchase,  by  citizens  of  the  United 
District         States   and  those   who  have   declared  their 
Rules  intention  to  become  such,  under  regulations 

prescribed  by  law,  and  according  to  the  local 
customs  or  rules  of  miners  in  the  several  mining-districts, 
so  far  as  the  same  are  applicable  and  not  inconsistent  with 
the  laws  of  the  United  States. — Sec.  1,  May  10,  1872.  Sec 
page  10. 

Length  of  Claims. 

Sec.  2320. — Mining-claims      upon     veins     or    lodes     of 
quartz  or  other  rock  in  place  bearing  gold,  silver,  cinnabar, 
lead,  tin,   copper,   or  other  valuable  deposits,   heretofore   lo- 
cated, shall  be  governed  as  to  length  along  the  vein  or  lode 
by  the  customs,  regulations,  and  laws  in  force  at  the  date 
of  their  location.      A  mining-claim  located  after  the  tenth  day 
of  May,  eighteen  hundred   and   seventy-two,  whether  located 
by  one  or  more  persons,  may  equal,  but  shall 
•nio^Tr^t-Tr       not  exceed,  one  thousand  five  hundred  feet 
discovery       in  length  aiong  the  vein  or  lode  ;  but  no  lo- 
Essential.       cation  of  a  mining-claim  shall  be  made  un- 
Width  of       til  the  discovery  of  the  vein  or  lode  within 
p,    .  the  limits  of  the  claim  located.      No  claim 

Claims.  shall  extend  more  than  three  hundred  feet 
on  each  side  of  the  middle  of  the  vein  at 
the  surface,  nor  shall  any  claim  be  limited  by  any  mining 
regulation  to  less  than  twenty-five  feet  on  each  side  of  the 
middle  of  the  vein  at  the  surface,  except  where  adverse  rights 
existing  on  the  tenth  day  of  May,  eighteen  hundred  and 
seventy-two,  render  such  limitation  necessary.  The  end- 
lines  of  each  claim  shall  be  parallel  to  each  other. — Sec  2, 
May  10,  1872.  See  pages  W,  22  27. 

Proof  of  Citizenship. 

Sec.  2321. — Proof   of    citizenship,    under    this    chapter, 
may  consist,  in  the  case  of  an  individual,  of  his  own  affidavit 
thereof ;   in  the   case  of  an  association   of   persons   unincor- 
porated,  of  the  affidavit  of  their  authorized  agent,  made  on 
his  own  knowledge,  or  upon  information  and 
Citizenship  of  belief ;  and  in  the  case  of  a  corporation  or- 
Corporations.    ganized    under     the    laws     of     the     United 
States,  or  of  any  State  or  Territory  thereof, 
by  the  filing  of  a  certified  copy  of  their  charter  or  certificate 
of  incorporation. — Sec.  7,  May  10,  1872.     See  page  399. 

Surface — Dip  and  Side  Veins. 

•  Sec.  2322. — The  locators  of  all  mining  locations  here- 
tofore made  or  which  shall  hereafter  be  made,  on  any  min- 
eral vein,  lode,  or  ledge,  situated  on  the  public  domain,  their 


464  TEXT  OF  U.  S.  STATUTES. 

heirs  and  assigns,  where  no  adverse  claim  exists  on  the  tenth 
day  of  May,   eighteen  hundred  and  seventy-two,  so  long  as 
they  comply  with  the  laws  of  the  United  States,  and  with 
State,  territorial,  and  local  regulations  not  in  conflict  with 
the  laws  of  the  United  States  governing  their  possessory  title, 
shall  have  the  exclusive  right  of  possession  and  enjoyment 
of  all  the  surface  included  within  the  lines  of  their  locations, 
and  of  all  veins,  lodes,  and  ledges  through- 
Top  or  Apex    out  their  entire  depth,  the  top  or  apex  of 
Controls         which  lies  inside  of    such    surface-lines  ex- 
tended downward  vertically,  although  such 
veins,  lodes,  or  ledges  may  so  far  depart  from  a  perpendic- 
ular in  their  course  downward  as  to  extend  outside  the  ver- 
tical  side-lines  of  such  surface  locations.      But  their  right 
of  possession  to  such  outside  parts  of  such  veins  or  ledges 
shall    be   confined   to   such   portions   thereof   as   lie   between 
vertical  planes  drawn  downward  as  above  described,  through 
the  end-lines  of  their   locations,  so  contin- 
«     r  ued  in  their  own  direction  that  such  planes 

ounace.  will  intersect  such  exterior  parts  of  such 
veins  or  ledges.  And  nothing  in  this  sec- 
tion shall  authorize  the  locator  or  possessor  of  a  vein  or  lode 
which  extends  in  its  downward  course  beyond  the  vertical 
lines  of  his  claim  to  enter  upon  the  surface  of  a  claim  owned 
or  possessed  by  another. — Sec.  3,  May  103  1872.  See  pages 
Itf,  156. 

Tunnels. 

Sec.  2323. — Where  a  tunnel  is  run  for  the  development 
of  a  vein  or  lode,  or  for  the  discovery  of  mines,  the  owners 
of  such  tunnel  shall  have  the  right  of  possession  of  all 
veins  or  lodes  within  three  thousand  feet  from  the  face 
of  such  tunnel  on  the  line  thereof,  not  previously  known 
to  exist,  discovered  in  such  tunnel,  to  the  same  extent  as 
if  discovered  from  the  surface ;  and  locations  on  the  line 
of  such  tunnel  of  veins  or  lodes  not  appearing  on  the  sur- 
face, made  by  other  parties  after  the  commencement  of  the 
tunnel,  and  while  the  same  is  being  prosecuted  with  reason- 
able diligence,  shall  be  invalid ;  but  failure  to  prosecute  the 
work  on  the  tunnel  for  six  months  shall  be  considered  as 
an  abandonment  of  the  right  to  all  undiscovered  veins  on 
the  line  of  such  tunnel. — Sec.  4,  May  10f  1872.  See  page  225. 

District  Rules. 

Sec.  2324. — The  miners   of   each    mining-district    may 
make  regulations  not  in  conflict  with  the  laws  of  the  United 
States,  or  with  the  laws  of  the  State  or  Territory  in  which 
the  district  is  situated,  governing  the  location,   manner  of 
recording,  amount  of  work  necessary  to  hold  possession  of  a 
mining-claim,    subject    to    the  following  re- 
Location,        quirements :       The    location    must    be    dis- 
Record.          tinctly   marked   on  the  ground  so  that  -  its 
boundaries  can  be  readily  traced.      All  rec- 
ords of  mining-claims  hereafter  made  shall  contain  the  name 


TEXT  OF  U.  S.  STATUTES.  465 

or  names  of  the  locators,  the  date  of  the  location,  and  such 
a   description   of   the   claim    or   claims   located   by    reference 
to    some    natural    object    or    permanent    monument    as    will 
identify     the     claim.       On     each     claim     located     after   the 
tenth    day    of    May,    eighteen    hundred   and 
Annual         seventy-two,  and  until  a  patent  has  been  is- 
Labor.         sued    therefor,    not    less     than     one     hun- 
dred   dollars'    worth    of    labor  shall  be  per- 
formed or  improvements  made    during  each  year.      On    all 
claims  located  prior  to  the  tenth  day  of  May,  eighteen  hun- 
dred and  seventy-two,  ten  dollars'   worth   of  labor  shall   be 
performed  or  improvements  made  by  the  *  tenth  day  of  June, 
eighteen  hundred  and  seventy-four,  and  each  year  thereafter, 
for  each  one  hundred  feet  in  length  along  the  vein  until  a 

Eatent  has  been  issued  therefor ;  but  where  such  claims  are 
eld  in  common,  such  expenditure  may  be  made  upon  any  one 
claim  ;  and  upon  a  failure  to  comply  with  these  conditions, 
the  claim  or  mine  upon  which  such  failure  occurred  shall 
be  open  to  relocation  in  the  same  manner  as  if  no  location 
of  the  same  had  ever  been  made,  provided  that  the  original 
locators,  their  heirs,  assigns,  or  legal  representatives,  have 
not  resumed  work  upon  the  claim  after  fail- 
ure  an(*  bef°re  such  location.  Upon  the 
failure  of  any  one  of  several  co-owners  to 
contribute  Ms  proportion  of  the  expendi- 
tures required  hereby,  the  co-owners  who  have  performed  the 
labor  or  made  the  improvements  may,  at  the  expiration  of 
the  year,  give  such  delinquent  co-owner  personal  notice  in 
writing  or  notice  by  publication  in  the  newspaper  published 
nearest  the  claim,  for  at  least  once  a  week  for  ninety  days, 
and  if  at  the  expiration  of  ninety  days  after  such  notice 
in  writing  or  by  publication  such  delinquent  should  fail 
or  refuse  to  contribute  his  proportion  of  the  expenditure 
required  by  this  section,  his  interest  in  the  claim  shall  be- 
come the  property  of  his  co-owners  who  have  made  the  re- 
quired expenditures. — Sec.  5,  May  10,  1872.  See  pages  67,  88, 
107. 

Amendment  of  1875 — Labor  by  Tunnel. 

That  section  two  thousand  three  hundred  and  twenty- 
four  of  the  Revised  Statutes  be,  and  the  same  is  hereby, 
amended  so  that  where  a  person  or  company  has  or  may  run 
a  tunnel  for  the  purposes  of  developing  a  lode  or  lodes, 
owned  by  said  person  or  company,  the  money  so  expended 
in  said  tunnel  shall  be  taken  and  considered  as  expended 
on  said  lode  or  lodes,  whether  located  prior  to  or  since  the 
passage  of  said  act ;  and  such  person  or  company  shall  not 
be  require'd  to  perform  work  on  the  surface  of  said  lode  or 
lodes  in  order  to  hold  the  same  as  required  by  said  act. — Sec. 
1,  Feb.  11,  1875.  Sap.  62.  See  page  233. 

•"Instead  of  June  10,  1874,  the  date  ultimately  fixed 
was  January  1,  1875.  See  note,  page  88. 


466  TEXT  OF  U.  S.  STATUTES. 

Amendment  of  1880 — Annual  Labor  Period  Fixed. 

That  section  twenty-three  hundred  and  twenty -four  of 
the  Revised  Statutes  of  the  United  States  be  amended  by 
adding  the  following  words :  "Provided^  That  the  period 
within  which  the  work  required  to  be  done  annually  on  all 
unpatented  mineral  claims  shall  commence  on  the  first  day 
of  January  succeeding  the  date  of  location  of  such  claim, 
and  this  section  shall  apply  to  all  claims  located  since  the 
tenth  day  of  May,  anno  Domini  eighteen  hundred  and  sev- 
enty-two."— Sec.  2,  January  22,  1880.  Sup.  276.  Sec  payc  88. 

Application  For  Patent. 

Sec.  2325. — A  patent  for  any  land  claimed  and  located 
for  valuable  deposits  may  be  obtained  in  the  following  man- 
ner :  Any  person,  association,  or  corporation  authorized  to 
locate  a  claim  under  this  chapter,  having  claimed  and  located 
a  piece  of  land  for  such  purposes,  who  has,  or  have,  complied 
with  the  terms  of  this  chapter,  may  file  in  the  proper 
land-office  an  application  for  a  patent,  under  oath,  showing 
such  compliance,  together  with  a  plat  and  field-notes  of  the 
claim  or  claims  in  common,  made  by  or  under  the  direction 
of  the  United  States  surveyor-general,  showing  accurately 
the  boundaries  of  the  claim  or  claims,  which  shall  be 
distinctly  marked  by  monuments  on  the  ground,  and  shall 
post  a  copy  of  such  plat,  together  with  a  notice  of  such 
application  for  a  patent,  in  a  conspicuous  place  on  the 
land  embraced  in  such  plat  previous  to  the  filing  of  the 
application  for  a  patent,  and  shall  file  an  affidavit  of  at 
least  two  persons  that  such  notice  has  been  duly  posted, 
and  shall  file  a  copy  of  the  notice  in  such  land-office,  and 
shall  thereupon  be  entitled  to  a  patent  for  the  land,  in  the 
manner  following :  The  register  of  the  land-office,  upon  the 
,  filing  of  such  application,  plat,  field-notes, 
60  Days  notices,  and  affidavits,  shall  publish  a  notice 
Publication,  that  such  application  has  been  made,  for  the 

period  of  sixty  days,  in  a  newspaper  to  be 
by  him  designated  as  published  nearest  to  such  claim  ;  and 
he  shall  also  post  such  notice  in  his  office  for  the  same 
period.  The  claimant  at  the  time  of  filing  this  application, 
or  at  any  time  thereafter,  within  the  sixty  days  of  pub- 
lication, shall  file  with  the  register  a  certificate  of  the 

United    States    surveyor-general    that    five 

$500  Improve-    hundred    dollars'   worth    of   labor   has   been 

ments  expended   or   improvements   made  upon   the 

claim  by  himself  or  grantors  ;  thajt  the  plat 
is  correct,  with  such  further  description  by  such  reference 
to  natural  objects  or  permanent  monuments  as  shall  iden- 
tify the  claim,  and  furnish  an  accurate  description,  to  be 
incorporated  in  the  patent.  At  the  expiration  of  the  sixty 
days  of  publication  the  claimant  shall  file  his  affidavit,  show- 
ing that  the  plat  and  notice  have  been  posted  in  a  conspicu- 


TEXT  OP  U.  S.  STATUTES.  467 

ous  place  on  the   claim  during  such  peiiocl 

Adverse.         of  publication.      If  no    adverse    claim    shall 

Claim.  have   been   filed   with   the   register   and  the 

receiver  of  the  proper  land-office  at  the  ex- 

piration of  the  sixty  days  of  publication,  it  shall  be  assumed 

that  the  applicant  is  entitled  to  a  patent,  upon  the  payment 

to  the  proper  officer  of  five  dollars  per  acre, 

$5  per  and    that    no    adverse    claim    exists  ;     and 

Acre.  thereafter   no   objection   from   third   parties 

to  the  issuance  of  a  patent  shall  be  heard, 

except  it  be  shown  that  the  applicant  has  failed  to  comply 

with  the  terms  of  this  chapter.  —  Sec.  6,  May  10,  1S72.     Sec  AP- 

PLICATION FOR  PATENT,  p.  382. 

Applications  by  Non-Kesidents. 

That  section  twenty-three  hundred  and  twenty-five  of 
the  Revised  Statutes  of  the  United  States  be  amended  by  add- 
ing thereto  the  following  words  :  "Provided,  That  where  the 
claimant  for  a  patent  is  not  a  resident  of  or  within  the  land 
district  wherein  the  vein,  lode,  ledge,  or  deposit  sought  to 
be  patented  is  located,  the  application  for  patent  and  the 
affidavits  required  to  be  made  in  this  section  by  the  claim- 
ant for  such  patent  may  be  made  by  his,  her,  or  its  author- 
ized agent,  where  said  agent  is  conversant  with  the  facts 
sought  to  be  established  by  said  affidavits  : 

And  provided,  That  this  section  shall  apply  to  all 
applications  now  pending  for  patents  to  mineral  lands."— 
Sec.  1,  January  22,  1880.  Sup.  276.  See  p.  J,12. 

Adverse  Claims. 

Sec.  2326.  —  Where  an  adverse  claim  is  filed  during  the 
period  of  publication,  it  shall  be  upon  oath  of  the  person 
or  persons  making  the  same,  and  shall  show  the  nature, 
boundaries,  and  extent  of  such  adverse  claim,  and  all  pro- 
ceedings, except  the  publication  of  notice  and  making  and 
filing  of  the  affidavit  thereof,  shall  be  stayed  until  the  con- 
Suit  Support-  troversy  snail  have  been  settled  or  decided 
itio-  in  ^  a  court  °^  competent  jurisdiction,  or  the 

inS  m  3°         adverse  claim  waived.      It  shall  be  the  duty 
Days.  of  the  adverse  claimant,  within  thirty  days 

after  filing  his  claim,   to  commence   proceedings   in  a   court 
of  competent  jurisdiction,  to  determine  the  question  of  the 
right  of  possession,  and  prosecute  the  same  with  reasonable 
Proceedings     diligence  to   final  judgment  ;   and  a  failure 
so  to  do  shall  be  a    waiver    of    his    adverse 


claim.  After  such  judgment  shall  have 
Judgment.  been  rendered,  the  party  entitled  to  the  pos- 
session of  the  claim,  or  any  portion  thereof,  may,  without 
giving  further  notice,  file  a  certified  copy  of  the  judgment- 
roll  with  the  register  of  the  land-office,  together  with  the 
certificate  of  the  surveyor-general  that  the  requisite  amount 
of  labor  has  been  expended  or  improvements  made  thereon, 
and  the  description  required  in  other  cases,  and  shall  pay 
to  the  receiver  five  dollars  per  acre  for  his  claim,  together 


468  TEXT  OF  U.  S.  STATUTES. 

with  the  proper  fees,  whereupon  the  whole  proceedings  and 
the  judgment-roll  shall  be  certified  by  the  register  to  the 
Commissioner  of  the  General  Land-Office,  and  a  patent  shall 
issue  thereon  for  the  claim,  or  such  portion  thereof  as  the 
applicant  shall  appear,  from  the  decision  of  the  court,  to 
rightly  possess.  If  it  appears  from  the  decision  of  the 
court  that  several  parties  are  entitled  to  separate  and  differ- 
ent portions  of  the  claim,  each  party  may  pay  for  his  por- 
tion of  the  claim,  with  the  proper  fees,  and  file  the  certificate 
and  description  by  the  surveyor-general,  whereupon  the  reg- 
ister shall  certify  the  proceedings  and  judgment-roll  to  the 
Commissioner  of  the  General  Land-Office,  as  in  the  preced- 
ing case,  and  patents  shall  issue  to  the  several  parties  ac- 
cording to  their  respective  rights.  Nothing  herein  contained 
shall  be  construed  to  prevent  the  alienation  of  the  title 
conveyed  by  a  patent  for  a  mining-claim  to  any  person 
whatever. — Sec.  7,  May  10,  1872.  See  p.  $1. 

Title  in  Neither  Party. 

That  if,  in  any  action  brought  pursuant  to  section 
twenty-three  hundred  and  twenty-six  of  the  Revised  Statutes, 
title  to  the  ground  in  controversy  shall  not  be  established 
by  either  party,  the  jury  shall  so  find,  and  judgment  shall 
be  entered  according  to  the  verdict.  In  such  case  costs  shall 
not  be  allowed  to  either  party,  and  the  claimant  shall  not 
proceed  in  the  land-office,  or  be  entitled  to  a  patent  for  the 
ground  in  controversy  until  he  shall  have  perfected  his 
title. — March  3,  1881.  Sup.  p.  32Jh 

Adverse  by  Agent  for  Non-Residents. 

That  the  adverse  claim  required  by  section  twenty- 
three  hundred  and  twenty-six  of  the  Revised  Statutes  may 
be  verified  by  the  oath  of  any  duly-authorized  agent  or  at- 
torney-in-fact  of  the  adverse  claimant  cognizant  of  the  facts 
stated ;  and  the  adverse  claimant,  if  residing  or  at  the 
time  being  beyond  the  limits  of  the  district  wherein  the 
claim  is  situated,  may  make  oath  to  the  adverse  claim  be- 
fore the  clerk  of  any  court  of  record  of  the  United  States 
or  of  the  State  or  Territory  where  the  adverse  claimant  may 
then  be,  or  before  any  notary  public  of  such  State  or  Ter- 
ritory-— Sec.  1,  April  26,  1882.  Sup.  p.  338. 

Affidavits  Out  of  Land  District. 

That  applicants  for  mineral  patents,  if  residing  be- 
yond the  limits  of  the  district  wherein  the  claim  is  situated, 
may  make  any  oath  or  affidavit  required  for  proof  of  citi- 
zenship before  the  clerk  of  any  court  of  record  or  before 
any  notary  public  of  any  State  or  Territory. — Sec.  2,  Id. 

Survey. 

Sec.  2327. — The  description  of  vein  or  lode  claims, 
upon  surveyed  lands,  shall  designate  the  location  of  the 
claim  with  reference  to  the  lines  of  the  public  surveys,  but 
need  not  conform  therewith  ;  but  where  a  patent  shall  be  is- 


TEXT  OP  U.  S.  STATUTES.  469 

sued  for  claims  upon  unsurveyed  lands,  the  surveyor-gen- 
eral, in  extending  the  surveys,  shall  adjust  the  same  to  the 
boundaries  of  such  patented  claim,  according  to  the  plat  or 
description  thereof,  but  so  as  in  no  case  to  interfere  with  or 
change  the  location  of  any  such  patented  claim. — Sec.  8,  May 
10,  1872.  See  p,  417. 

Previous  Applications. 

Sec.  2328. — Applications  for  patents  for  mining-claims 

under    former   laws   now    pending   may    be    prosecuted   to    a 

final  decision  in  the  General  Land-Office ;  but  in  such  cases 

where  adverse  rights  are  not  affected  thereby,  patents  may 

issue   in   pursuance   of  the  provisions   of  this   chapter ;   and 

Adverse         a^  patents  for  mining-claims  upon  veins  or 

T?icrTit<j          lodes  heretofore  issued  shall  convey  all  the 

xtignifc          rights  and  privileges  conferred  by  this  chap- 

Excepted.       ter  where  no  adverse  rights  existed  on  the 

tenth  day  of  May,  eighteen  hundred  and  seventy-two. — Sec. 

9,  May  10,  1872.     See  page  1^1,. 

Placers  Open  to  Entry. 

Sec.  2329. — Claims  usually  called  "placers,"  including 
all  forms  of  deposit,  excepting  veins  of  quartz,  or  other  rock 
in  place,  shall  be  subject  to  entry  and  patent,  under  like  cir- 
cumstances and  conditions,  and  upon  similar  proceedings, 
as  are  provided  for  vein  or  lode  claims  ;  but  where  the  lands 
have  been  previously  surveyed  by  the  United  States,  the 
entry  in  its  exterior  limits  shall  conform  to  the  legal  sub- 
divisions of  the  public  lands. — Sec.  12,  July  9,  1870.  See 
page  190. 

Oil  Placer  Act. 

That  any  person  authorized  to  enter  lands  under  the 
mining  laws  of  the  United  States  may  enter  and  obtain 
patent  to  lands  containing  petroleum  or  other  mineral  oils, 
and  chiefly  valuable  therefor,  under  the  provisions  of  the 
laws  relating  to  placer  mineral  claims :  Provided,  That 
lands  containing  such  petroleum  or  other  mineral  oils  which 
have  heretofore  been  filed  upon,  claimed,  or  improved  as 
mineral,  but  not  yet  patented,  may  be  held  and  patented 
under  the  provisions  of  this  Act  the  same  as  if  such  filing, 
claim,  or  improvement  were  subsequent  to  the  date  of  the 
passage  hereof. — Felt.  11,  1897.  29  St.  L.  526.  See  page  192. 

Saline  Placer  Act.     . 

That  all  unoccupied  public  lands  of  the  United  States 
containing  salt  springs,  or  deposits  of  salt  in  any  form,  and 
chiefly  valuable  therefor,  are  hereby  declared  to  be  subject 
to  location  and  purchase  under  the  provisions  of  the  law 
relating  to  placer-mining  claims  :  Provided,  That  the  same 
person  'shall  not  locate  or  enter  more  than  one  claim  here- 
under. — Jan.  31,  1901,  81  St.  L.  11,5.  See  page  193. 


ITu  TEXT  OF  U.  S.  STATUTES. 

Legal  Subdivision  of  Placers. 

Sec.  2330. — Legal   subdivisions   of   forty   acres  may   be 
subdivided   into   ten-acre  tracts  ;   and  two  or  more   persons, 
or  associations  of  persons,  having  contiguous  claims  of  any 
size,  although  such  claims  may  be  less  than  ten  acres  each, 
may  make  joint  entry  thereof  ;  but  no  location  of  a  placer- 
claim,  made  after    the   ninth    day    of    July, 
160  Acre         eighteen   hundred    and     seventy,     shall     ex- 
Placers  ceed  one  hundred  and    sixty    acres  for  any 
one  person  or  association  of  persons,  which 
location  shall    conform    to   the   United   States   surveys ;   and 
nothing  in  this  section  contained  shall  defeat  or  impair  any 
bona-fide  pre-emption  or  homestead  claim  upon  agricultural 
lands,   or  authorize  the    sale    of    the    improvements,  of    any 
bona-fide  settler  to  any  purchaser. — Sec.  12,  July  9,  1870.      Sec 
payc  WO. 

Placers  on  Surveyed  Lands. 

Sec.  2331. — Where  placer  claims  are  upon  surveyed 
lands,  and  conform  to  legal  subdivisions,  no  further  survey 
or  plat  shall  be  required,  and  all  placer-mining  claims  lo- 
cated after  the  tenth  day  of  May,  eighteen  hundred  and 
seventy-two,  shall  conform  as  near  as  practicable  with  the 
United  States  system  of  public-land  surveys,  and  the  rectang- 
ular sub-divisions  of  such  surveys,  and  no  such  location  shall 
include  more  than  twenty  acres  for  each  individual  claim- 
ant ;  but  where  placer-claims  cannot  be  conformed  to  legal 
subdivisions,  survey  and  plat  shall  be  made  as  on  unsur- 
yeyed  lands  ;  and  where  by  the  segregation  of  mineral  land 
in  any  legal  subdivision  a  quantity  of  agricultural  land  less 
than  forty  acres  remains,  such  fractional  portion  of  agri- 
cultural land  may  be  entered  by  any  party  qualified  by  law, 
for  homestead  or  pre-emption  purposes. — Sec.  10,  Hay  10, 
1872.  See  page  190. 

Limitations. 

Sec.  2332. — Where  such  person  or  association,  they  and 
their  grantors,   have  held  and  worked  their    claims    for    a 
period  equal  to  the  time  prescribed  by  the  statute  of  limi- 
tations  for  mining-claims   of  the   State   or   Territory   where 
the  same  may  be  situated,  evidence  of  such  possession  and 
working  of  the  claims  for  such  period  shall 
j.  be   sufficient  to  establish  a  right  to  a  pat- 

l/iens.  ent  thereto  under  this   chapter,   in  the  ab- 

sence of  any  adverse  claim  ;  but  nothing  in 
this  chapter  shall  be  deemed  to  impair  any  lien  which  may 
have  attached  in  any  way  whatever  to  any  mining-claim 
or  property  thereto  attached  prior  to  the  issuance  of  a  pat- 
ent.— Sec.  IS,  July  9,  1870.  See  pp.  235,  338. 

Placer  Claim  Containing  Lode. 

Sec.  2333. — Where  the  same  person,  association,  or 
corporation  is  in  possession  of  a  placer-claim,  and  also  a 


TEXT  OP  U.  S.  STATUTES.  471 

vein  or  lode  included  within  the  boundaries  thereof,  appli- 
cation shall  be  made  for  a  patent  for  the  placer-daim, 
with  the  statement  that  it  includes  such  vein  or  lode,  and 
in  such  case  a  patent  shall  issue  for  the  placer-claim,  sub- 
ject to  the  provisions  of  this  chapter,  including  such  vein 
or  lode,  upon  the  payment  of  five  dollars  per  acre  for  such 
vein  or  lode  claim,  and  twenty-five  feet  of  surface  on  each 
side  thereof.  The  remainder  of  the  placer- 
Placers  $2.50  claim,  or  any  placer-claim  not  embracing 
per  Acre.  anv  vein  °r  lode-claim,  shall  be  paid  for 
at  the  rate  of  two  dollars  and  fifty  cents 
per  acre,  together  with  all  costs  of  proceedings  ;  and  where 
a  vein  or  lode,  such  as  is  described  in  section  twenty-three 
hundred  and  twenty,  is  known  to  exist  within  the  boundaries 
of  a  placer-claim,  an  application  for  a  patent  for  such 
placer-claim  which  does  not  include  an  application  for  the 
vein  or  lode  claim  shall  be  construed  as  a  conclusive  declara- 
tion that  the  claimant  of  the  placer-claim  has  no  right  of 
possession  of  the  vein  or  lode  claim  ;  but  where  the  existence 
of  a  vein  or  lode  in  a  placer-claim  is  not  known,  a  patent 
for  the  placer-claim  shall  convey  all  valuable  mineral  and 
other  deposits  within  the  boundaries  thereof. — Sec.  11,  May 
10,  1872.  See  page  202. 

Deputy  Surveyor  and  Fees. 

Sec.  2334. — The  surveyor-general  of  the  United  States 
may  appoint  in  each  land-district  containing  mineral  lands 
as  many  competent  surveyors  as  shall  apply  for  appointment 
to  survey  mining-claims.  The  expenses  of  the  survey  of 
vein  or  lode  claims,  and  the  survey  and  subdivision  of  placer- 
claims  into  smaller  quantities  than  one  hundred  and  sixty 
acres,  together  with  the  cost  of  publication  of  notices,  shall 
be  paid  by  the  applicants,  and  they  shall  be  at  liberty  to  ob- 
tain the  same  at  the  most  reasonable  rates,  and  they  shall 
also  be  at  liberty  to  employ  any  United  States  deputy  sur- 
veyor  to  make  the  survey.  The  Commis- 
Charges  for  sioner  of  the  General  Land-Office  shall  also 
Publication,  have  power  to  establish  the  maximum 
charges  for  surveys  and  publication  of  no-» 
tices  under  this  chapter  ;  and,  in  case  of  excessive  charges 
for  publication,  he  may  designate  any  newspaper  published 
in  a  land-district  where  mines  are  situated  for  the  publi- 
cation of  mining-notices  in  such  district,  and  fix  the  rates 
to  be  charged  by  such  paper  ;  and,  to  the  end  that  the  Com- 
missioner may  be  fully  informed  on  the  subject,  each  appli- 
cant shall  file  with  the  register  a  sworn  statement  of  all 
charges  and  fees  paid  by  such  applicant  for  publication  and 
surveys,  together  with  all  fees  and  money  paid  the  register 
and  receiver  of  the  land-office,  which  statement  shall  be 
transmitted,  with  the  other  papers  in  the  case,  to  the  Com- 
missioner of  the  General  Land-Office. — Sec.  12,  May  10,  1872. 
See  p.  36'-?. 


472  TEXT  OP  U.  S.  STATUTES. 

Affidavits  and  Proofs. 

Sec.  2335. — All    affidavits   required   to   be   made   under 
this  chapter  may  be  verified  before  any  officer  authorized  to 
administer  oaths  within  the  land-district  where  the  claims 
may    be    situated,    and    all    testimony    and    proofs    may    be 
taken   before  any   such   officer,   and,   when   duly   certified  by 
the  officer  taking  the  same,   shall  have  the  same  force  and 
effect  as  if  taken  before  the  register  and  re- 
Agncultural      ceiver  of  the  land-office.     In  cases  of  con- 
Contest.  test  as  to  tne  mineral  or  agricultural  char- 
acter  of   land,     the    testimony   and    proofs 
may  be  taken   as  herein  provided  on  personal  notice   of  at 
least  ten  days  to  the  opposing  party  ;  or  if  such  party  can- 
not be  found,  then   by  publication  of  at  least  once  a  week 
for  thirty  days  in  a  newspaper,  to  be  designated  by  the  reg- 
ister of  the  land-office  as  published  nearest  to  the   location 
of  such  land ;  and  the  register  shall  require  proof  that  such 
notice  has  been  given. — Sec.  13,  May  10,  1872.     See  p.  365. 

Cross  Veins. 

Sec.  2336. — Where  two  or  more  veins  intersect  or  cross 
each  other,  priority  of  title  shall  govern,  and  such  prior  lo- 
cation  shall   be  entitled   to   all     ore    or    mineral     contained 
within   the  space   of  intersection ;   but  the  subsequent  loca- 
tion  shall   have   the   right   of  way   through 
Veins  Uniting     the  space   of  intersection  for  the  purposes 
on  the  Dip.        of   the   convenient    working     of    the    mine. 
And  where  two  or  more  veins  unite,  the  old- 
est or  prior  location  shall  take  the  vein  below  the  point  of 
union,  including  all  the  space  of  intersection. — Sec.  1^,  May 
10,  1872.     See  pages  138,  1^2. 

Mill  Sites. 

Sec.  2337. — Where  non-mineral  land  not  contiguous  to 
the  vein  or  lode  is  used  or  occupied  by  the  proprietor  of 
such  vein  or  lode  for  mining  or  milling  purposes,  such 
non-adjacent  surface-ground  may  be  embraced  and  included 
in  an  application  for  a  patent  for  such  vein  or  lode,  and 
the  same  may  be  patented  therewith,  subject  to  the  same 
preliminary  requirements  as  to  survey  and  notice  as  are  ap- 
plicable to  veins  or  lodes  ;  but  no  location  hereafter  made 
of  such  non-adjacent  land  shall  exceed  five  acres,  and  pay- 
ment for  the  same  must  be  made  at  the  same  rate  as  'fixed 
by  this  chapter  for  the  superficies  of  the  lode.  The  owner 
of  a  quartz-mill  or  reduction-works,  not  owning  a  mine  in 
connection  therewith,  may  also  receive  a  patent  for  his  mill- 
site,  as  provided  in  this  section. — Sec.  15,  Hay  10,  1872.  See 
page  212. 

Easements. 

Sec.  2338. — As  a  condition  of  sale,  in  the  absence  of 
necessary  legislation  by  Congress,  the  local  legislature  of 
any  State  or  Territory  may  provide  rules  for  working  mines, 


TEXT  OF  U.  S.  STATUTES.  473 

involving  easements,  drainage,  and  other  necessary  means 
to  their  complete  development,  and  those  conditions  shall  be 
fully  expressed  in  the  patent. — Sec.  5,  July  26,  1866.  See 
page  186. 

Water  Eights — Appropriation. 

Sec.  2339. — Whenever,  by  priority  of  possession,  rights 
to  the  use  of  water  for  mining,  agricultural,  manufacturing, 
or  other  purposes,  have  vested  and  accrued,  and  the  same 
are  recognized  and  acknowledged  by  the  local  customs,  laws, 
and  the  decisions  of  courts,  the  possessors  and  owners  of 
such  vested  rights  shall  be  maintained  and  protected  in  the 
same  ;  and  the  right  of  way  for  the  construction  of  ditches 
and  canals  for  the  purposes  herein  specified  is  acknowledged 
and  confirmed ;  but  whenever  any  person,  in  the  construc- 
tion of  any  ditch  or  canal,  injures  or  damages  the  posses- 
sion of  any  settler  on  the  public  domain,  the  party  commit- 
ting such  injury  or  damage  shall  be  liable  to  the  party 
injured  for  such  injury  or  damage.— Sec.  9,  July  26,  1866.  See 
page  179. 

Patents  Subject  to  Water  Easements. 

Sec.  2340. — All  patents  granted,  or  pre-emption  or 
homesteads  allowed,  shall  be  subject  to  any  vested  and  ac- 
crued water-right,  or  rights  to  ditches  and  reservoirs  used 
in  connection  with  such  water-rights,  as  may  have  been  ac- 
quired under  or  recognized  by  the  preceding  section. — Sec. 
17,  July  9,  1870.  See  page  179. 

Homesteads. 

Sec.  2341. — Wherever,  upon  lands  heretofore  desig- 
nated as  mineral  lands,  which  have  been  excluded  from  sur- 
vey and  sale,  there  have  been  homesteads  made  by  citizens 
of  the  United  States,  or  persons  who  have  declared  their 
intention  to  become  citizens,  which  homesteads  have  been 
made,  improved,  and  used  for  agricultural  purposes,  and 
upon  which  there  have  been  no  valuable  mines  of  gold,  sil- 
ver, cinnabar,  or  copper  discovered,  and  which  are  properly 
agricultural  lands,  the  settlers  or  owners  of  such  home- 
steads shall  have  a  right  of  pre-emption  thereto,  and  shall 
be  entitled  to  purchase  the  same  at  the  price  of  one  dol- 
lar and  twenty-five  cents  per  acre,  and  in  quantity  not  to 
exceed  one  hundred  and  sixty  acres ;  or  they  may  avail 
themselves  of  the  provisions  of  chapter  five  of  this  Title,  re- 
lating to  "HOMESTEADS." — Sec.  10,  July  26,  1866. 

Segregation  of  Agricultural  Lands. 

Sec.  2342. — Upon  the  survey  of  the  lands  described  in 
the  preceding  section,  the  Secretary  of  the  Interior  may 
designate  and  set  apart  such  portions  of  the  same  as  are 
clearly  agricultural  lands,  which  lands  shall  thereafter  be 
subject  to  pre-emption  and  sale  as  other  public  lands,  and 
be  subject  to  all  the  laws  and  regulations  applicable  to  the 
same. — Sec.  11,  July  26,  1866. 


474  TEXT  OF  U.  S.  STATUTES. 

Land  Districts. 

Sec.  2343. — The  President  is  authorized  to  establish 
additional  land-districts,  and  to  appoint  the  necessary  offi- 
cers under  existing  laws,  wherever  he  may  deem  the  same 
necessary  for  the  public  convenience  in  executing  the  pro- 
visions of  this  chapter. — Sec.  7,  July  26,  1866. 

Vested  Eights. 

Sec.  2344. — Nothing  contained  in  this  chapter  shall  be 
construed  to  impair,  in  any  way,  rights  or  interests  in  min- 
ing property  acquired  under  existing  laws  ;  nor  to  affect  the 
provisions  of  the  act  entitled  "An  act  granting  to  A.  Sutro 
the  right  of  way  and  other  privileges  to  aid  in  the  construc- 
tion of  a  draining  and  exploring  tunnel  to  the  Comstock 
lode,  in  the  State  of  Nevada,"  approved  July  twenty-five, 
eighteen  hundred  and  sixty-six. — Sec.  11,  July  9,  1870.  Sec.- 
16,  May  10,  1872. 

Sec.  2345. — Excepts  Michigan,  Wisconsin  and  Minne- 
sota.* 

State  and  Railroad  Grants. 

Sec.  2346. — No  act  passed  at  the  first  session  of  the 
Thirty-eighth  Congress,  granting  lands  to  States  or  corpora- 
tions to  aid  in  the  construction  of  roads  or  for  other  pur- 
poses, or  to  extend  the  time  of  grants  made  prior  to  the 
thirtieth  day  of  January,  eighteen  hundred  and  sixty-five, 
shall  be  so  construed  as  to  embrace  mineral  lands,  which 
in  all  cases  are  reserved  exclusively  to  the  United  States, 
unless  otherwise  specially  provided  in  the  act  or  acts  mak- 
ing the  grants.— Ties.  No.  10,  January  30,  1865. 

Rights  of  Canadians  in  Alaska. 

Sec.  13. — That  native-born  citizens  of  the  Dominion  of 
Canada  shall  be  accorded  in  said  District  of  Alaska  the 
same  mining  rights  and  privileges  accorded  to  citizens  of 
the  United  States  in  British  Columbia  and  the  Northwest 
Territory  by  the  laws  of  the  Dominion  of  Canada  or  the 
local  laws,  rules,  and  regulations  ;  but  no  greater  rights  shall 
be  thus  accorded  than  citizens  of  the  United  States  or  per- 
sons who  have  declared  their  intention  to  become  such 
may  enjoy  in  said  District  of  Alaska  ;  and  the  Secretary  of 
the  Interior  shall  from  time  to  time,  promulgate  and  en- 
force rules  and  regulations  to  carry  this  provision  into 
effect. — Approved  May  1%,  1898.  30  St.  L.  415.  See  Rule  112, 
p.  368. 

By  Act  of  May  21,  1896,  the  right  of  way  for  oil 
pipe  lines  in  Colorado  and  Wyoming  is  granted. 

*By  Act  of  May  5,  1876,  Sup.  104,  Missouri  and  Kan- 
sas are  excepted  from  the  operation  of  the  Mining  Act.  By 
Act  of  March  3,  1883,  Sup.  404*  Alabama  is  excepted. 


COAL  LANDS.  475 

As  to  lands  on  Military  Reservations  see  Act  of 
July  5,  1884,  23  Stat.  L.  104.  Sup.  455.  There  are 
many  special  Acts  opening  particular  Military  and 
Indian  Reservations. 


COAL  LANDS. 


Legal  Subdivisions. 

Sec.  2347. — Every  person  above  the  age  of  twenty-one 
years,  who  is  a   citizen   of  the   United   States,   or   who   has 
declared   his   intention   to   become   such,    or   any   association 
of  persons  severally  qualified  as  above,   shall,  upon  applica- 
tion to  the  register  of  the  proper  land-office,  have  the  right 
to  enter,  by  legal  subdivisions,  any  quantity  of  vacant  coal- 
lands   of   the   United   States   not   otherwise   appropriated    or 
reserved    by    competent    authority,    not    ex- 
160  or  320       ceeding  one  hundred  and  sixty  acres  to  such 
Acres  $10  to      individual    person,    or    three    hundred    and 
A  .  twenty  acres  to  such  association,  upon  pay- 

$20  per  Acre.  ment  to  the  receiver  of  not  less  than  ten 
dollars  per  acre  for  such  lands,  where  the  same  shall  be 
situated  more  than  fifteen  miles  from  any  completed  rail- 
road, and  not  less  than  twenty  dollars  per  acre  for  such 
lands  as  shall  be  within  fifteen  miles  of  such  road. — Sec.  .1, 
March  3,  1873. 

Settlers  Preferred. 

Sec.  2348. — Any  person  or  association  of  persons  sev- 
erally  qualified,   as.  above   provided,    who   have    opened   and, 
improved,    or    shall    hereafter    open    and    improve,    any    coal 
mine  or  mines  upon  the  public  lands,  and  shall  be  in  actual 
possession   of   the  same,    shall    be   entitled   to   a   preference- 
right  of  entry,  under  the  preceding  section,  of  the  mines  so 
opened  and  improved  :    Provided,  That  when 
640  Acre         any  association   of  not  less  than  four  per- 
Tracts.  sons,  severally  qualified  as  above  provided, 

shall  have  expended  not  less  than  five  thou- 
sand dollars  in  working  and  improving  any  such  mine  or 
mines,  such  association  may  enter  not  exceeding  six  hundred 
and  forty  acres,  including  such  mining  improvements. — Sec. 
2,  Id. 

Land  Office  Proceedings. 

Sec.  2349. — All  claims  under  the  preceding  section 
must  be  presented  to  the  register  of  the  proper  land-district 
within  sixty  days  after  the  date  of  actual  possession  and  the 
commencement  of  improvements  on  the  land,  by  the  filing 
of  a  declaratory  statement  therefor  ;  but  when  the  township 


476  COAL  LANDS. 

plat  is  not  on  file  at  the  date  of  such  improvement,  filing 
must  be  made  within  sixty  days  from  the  receipt  of  such 
plat  at  the  district  office  ;  and  where  the  improvements  shall 
have  been  made  prior  to  the  expiration  of  three  months 
from  the  third  day  of  March,  eighteen  hundred  and  seventy- 
three,  sixty  days  from  the  expiration  of  such  three  months 
shall  be  allowed  for  the  filing  of  a  declaratory  statement, 
and  no  sale  under  the  provisions  of  this  section  shall  be 
allowed  until  the  expiration  of  six  months  from  the  third 
day  of  March,  eighteen  hundred  and  seventy-three. — Sec. 
3,  Id. 


Entry  Limited. 


Sec.  2350. — The  three  preceding  sections  shall  be  held 
to  authorize  only  one  entry  by  the  same  person  or  associa- 
tion of  persons  ;  and  no  association  of  persons  any  member  . 
of  which  shall  have  taken  the  benefit  of  such  sections,  either 
as  an  individual  or  as  a  member  of  any  other  association, 
shall  enter  or  hold  any  other  lands  under  the  provisions 
thereof ;  and  no  member  of  any  association  which  shall  have 
taken  the  benefit  of  such  sections  shall  enter  or  hold  any 
other  lands  under  their  provisions  ;  and  all  persons  claim- 
ing under  section  twenty-three  hundred  and  forty-eight  shall 
be  required  to  prove  their  respective  rights  and  pay  for  the 
lands  filed  upon  within  one  year  from  the  time  prescribed 
for  filing  their  respective  claims  ;  and  upon  failure  to  file 
the  proper  notice,  or  to  pay  for  the  land  within  the  re- 
quired period,  the  same  shall  be  subject  to  entry  by  any 
other  qualified  applicant." — Sec.  k,  Id. 


Conflicting  Claims. 


Sec.  2351. — In  case  of  conflicting  claims  upon  coal- 
lands  where  the  improvements  shall  be  commenced,  after 
the  third  day  of  March,  eighteen  hundred  and  seventy-three, 
priority  of  possession  and  improvement,  followed  by  proper 
filing  ind  continued  good  faith,  shall  determine  the  prefer- 
ence-ri^'ht  to  purchase.  And  also  wrhere  improvements  have 
already  been  made  prior  to  the  third  day  of  March,  eighteen 
hundred  and  seventy-three,  division  of  the  land  claimed  may 
be  made  by  legal  subdivisions,  to  include,  as  near  as  may 
be,  the  valuable  improvements  of  the  respective  parties. 
The  Commissioner  of  the  General  Land-Office  is  authorized 
to  issue  all  needful  rules  and  regulations  for  carrying  into 
effect  the  provisions  of  this  and  the  four  preceding  sections. 
— Sec.  5,  Id. 

Vested  Rights — Lodes  and  Placers  Excepted. 

Sec.  2352. — Nothing  in  the  five  preceding  sections  shall 
be  construed  to  destroy  or  impair  any  rights  which  may 
have  attached  prior  to  the  third  day  of  March,  eighteen 
hundred  and  seventy-three,  or  to  authorize  the  sale  of  lands 
valuable  for  mines  of  gold,  silver,  or  copper. — Sec.  6,  Id. 


TIMBER  ACT.  477 

The  proceedings  to  enter  coal  lands  under  the 
above  sections  are  regulated  by  Circular  of  the  Gen- 
eral Land  Office  of  July  31,  1882,  reissued  December 
28,  1897.  A  special  survey  of  township  containing 
coal  lands  is  provided  for  by  28  St.  L.  423. 


TIMBER  ACT. 


An  Act  authorizing  the  citizens  of  Colorado,  Nevada 
and  the  Territories  to  fell  and  remove  timber  on  the  public 
domain  for  mining  and  domestic  purposes. 

Timber  Free  to  Miners. 

Be  it  enacted,  etc.,  That  all  citizens  of  the  United 
States  and  other  persons,  bona  fide  residents  of  the  State 
of  Colorado,  or  Nevada,  or  either  of  the  Territories  of  New 
Mexico,  Arizona,  Utah,  Wyoming,  Dakota,  Idaho,  or  Mon 
tana,  and  all  other  mineral  districts  of  the  United  States, 
shall  be,  and  are  hereby,  authorized  and  permitted  to  fell 
and  remove,  for  building,  agricultural,  mining,  or  other  do- 
mestic purposes,  any  timber  or  other  trees  growing  or  being 
on  the  public  lands,  said  lands  being  mineral,  and  not  subject 
to  entry  under  existing  laws  of  the  United  States,  except  for 
mineral  entry,  in  either  of  said  States,  Territories,  or  dis- 
tricts of  which  such  citizens  or  persons  may  be  at  the  time 
bona-fide  residents,  subject  to  such  rules  and  regulations 
as  the  Secretary  of  the  Interior  may  prescribe  for  the  pro- 
tection of  the  timber  and  of  the  undergrowth  growing  upon 
such  lands,  and  for  other  purposes  :  Provided,  the  provisions 
of  this  act  shall  not  extend  to  railroad  corporations. 

Land  Office  Inspection. 

Sec.  2. — That  it  shall  be  the  duty  of  the  register  and 
the  receiver  of  any  local  land-office  in  whose  district  any 
mineral  land  may  be  situated  to  ascertain  from  time  to  time 
whether  any  timber  is  being  cut  or  used  upon  any  such 
lands,  except  for  the  purposes  authorized  by  this  act,  within 
their  respective  land  districts  ;  and,  if  so,  they  shall  imme- 
diately notify  the  Commissioner  of  the  General  Land  Office 
of  that  fact ; 

And  all  necessary  expenses  incurred  in  making  such 
proper  examination  shall  be  paid  and  allowed  such  register 
and  receiver  in  making  up  their  next  quarterly  accounts. 

Penalty. 

Sec.  3. — Any  person  or  persons  who  shall  violate  the 
provisions  of  this  act,  or  any  rules  and  regulations  in  pur- 
suance thereof  made  by  the  Secretary  of  the  Interior,  shall 


478  TIMBER  ACT. 

be  deemed  guilty  of  a  misdemeanor,  and,  upon  conviction, 
shall  be  fined  in  any  sum  not  exceeding  five  hundred  dollars, 
and  to  which  may  be  added  imprisonment  for  any  term  not 
exceeding  six  months. — Approved  June  3,  1878. — Sup.  p.  166. 
See  U.  8.  r.  Copper  Queen  Co.  60  Pac.  885;  U.  S.  v.  Lynde,  Jf7 
Fed.  297. 

The  above  Act  in  connection  with  the  Acts  of 
March  3,  1891,'  (2Q  8t.  L.  1093)  and  February  13,  1893 
(27  St.  L.  444),  are  the  Acts  now  in  force  controlling 
the  right  to  cut  timber  in  the  mining  States  and 
Territories,  except  Alaska.  They  are  construed  by 
Circulars  of  the  Land  Department,  dated  respectively 
January  18th,  and  February  10th,  1900.— 2#  L.  D. 
511,  572. 

Lands  valuable  chiefly  for  timber  but  unfit  for 
cultivation  may  be  sold  in  tracts  not  exceeding  160 
acres  at  $2.50  per  acre  under  the  terms  of  the  Acts 
of  June  3,  1878,  1  Sup.  167,  and  August  4,  1892,  2 
Sup.  65. 

Alaska. 

Section  11,  Act  of  1898,  30  St.  L.  414,  allows  free 
use  of  timber  to  miners  in  Alaska. 


TABLE  OF  CASES  CITED. 


479 


TABLE  OF  CASES   CITED. 


Abbott  v.   Smith,  Cited  Page  272. 
Ah   He   v.    Crippen    (19   Gal.   492), 

285. 

Ah  Kle  v.  McLean,   284. 
Ahren   v.    Dubuque    Co.    (48   Iowa 

140),  178. 

Ajax  Co.  v.  Triumph  Co.  333. 
Alberson  v.  Elk  Creek  Co.  266. 
Alder  Gulch  Co.  v.  Hayes,  184. 
Alexander    v.    Sherman     (16    Pac. 

45),  117. 

Alice  Co.  v.   Street.   205. 
Allen  v.  Dunlap,  327. 
Alta  Co.  v.  Benson  Co.  92. 
Altoona    Co.    v.    Integral    Co.    93, 

283,  315,  338. 
Amador  Co.  v.  DeWitt,  231. 

—  v.  South  Spring  Co.  165. 
Amy-Silversmith  Case,  162,  163. 
Anaconda  Co.  v.  Butte  Co.  328. 
Anchor  v.   Howe,  434. 
Anderson  v.  Daily  Co.  324. 

v.   Hapler,  310. 

—  v.  Harvey   (10  Qratt.  386), 

328. 
Anthony   v.    Jillson    (83   Gal.   296), 

197. 

Anvil  Co.  v.   Humble,  307. 
Ardesco  Co.  v.  Gilson   (63  Pa.  St. 

11,6),  323,  324. 
Argentine  Co.  v.  Terrible  Co.  162, 

167,  173. 
Argonaut  Co.  v.   Kennedy.   156. 

v.  Turner,  132,  149. 

Arkansas  Val.   Co.   v.   Belden   Co. 

306. 
Armstrong  v.   Lower  (6  Colo.   581, 

393),  39,  112,  137,  149,  177. 
Arnett  v.  Linhart,  183. 
Arnold  v.  Baker  (6  Neb.  134),  312. 
Ashland  Co.  v.  Wallace,  323. 
Ashman  v.  Wigton,  218. 
Aspen  Co.  v.  llucker,  335. 
Astiazaran  v.  Santa  Rita  Co.  285. 
Atchison    v.    Peterson     (20    Wall. 

507),  180,  209,  210. 


Atkins  v.  Hendree   (1  Idaho,  107), 

93,  141. 

Atlantic  Co.  v.  Ropes  Co.  236. 
Attersoll  v.  Stevens  (1  Taunt.  183), 

321. 
Attwood   v.    Fricott    (17   Gal.    38), 

26,  317. 

Aurora  Hill  Co.  v.  85  Co.   (34  Fed. 

515),  92,   136. 
Austin  v.  Berlin,  295. 
Axiom  Co.  v.  Little,  441. 

—  v.  White,  102. 
Aye  v.  Philadelphia  Co.  85,  265. 

Back  v.  Sierra  Nev.  Co.  232. 

Bacon  v.  Thornton,  319. 

Baird  v.  Williamson  (15  C.  B.  N.  8. 

376),  178. 

Barker  v.  Dale,  87. 
Barnard    v.     McKenzie     (4    Colo. 

251),  239. 

Bartley  v.  Phillips,  265. 
Basey  v.  Gallagher   (20  Wall.  670), 

180. 

Bassick  Co.  v.  Schoolfield,  239. 
Bates  v.  Wilson,  439. 
Baxter  Co.  v.  Patterson,  53,  54. 
Bay  State  Co.  v.  Brown,  314. 
Beals  v.  Cone,  32,  34,  42,  56,  96, 

102,  124. 

Bean  v.  Pioneer  Co.  324. 
Beaver  Co.  v.  St.  Vrain  Co.  86. 
Beck  v.  O'Connor,  236. 
Becker  v.  Pugh    (9  Colo.  589),   19, 

27,  111,  314,  316,  442,  449. 
Belcher  Co.  v.  Deferrari,  99. 
Belk  v.  Meagher   (3  Mont.  65;  104 

U.  S.  279),  81,  93,  101,  315. 
Bell  v.  Bed  Rock  Co.   (36  Gal.  214), 

10,  87. 

v.  Denson,  339. 

-  v.   Skillicorn,  170. 
Bennett    v.    Harkrader,    74,    447, 

459. 
Bennitt  v.   Whitehouse    (28  Beav. 

119),  337. 


480 


TABLE  OF  CASES  CITED. 


Benson  v.  Alta  Co.  92,  277,  320. 
Berea    Co.    v.    Kraft    (SI    Oh.    St. 

287),   324. 
Berg  v.  Koegel,  77. 
Berth  a  Co.  v.  Martin,  324. 
Bicknell  v.  Austin  Co.  266,  268. 
Billings  v.  Aspen  Co.  282,  283. 
Bishop  v.  Baisley,  94,  102. 
Black  v.  Elkhorn  Co.  132,  249. 
Blackburn  v.  Portland  Co.  440. 
Blackmore  v.  Reilly,  223. 
Blake  v.  Butte  Co.    (2  UtaJi,  5%), 

144. 

v.  Thome,  76,  117. 

Blen   v.   Bear   River   Co.    (20   Gal. 

602),  257. 

Bliss  v.  Kingdom,  230. 
Block  v.  Murray,  241. 
Bluebird  Co.  v.  Larger,  154,  176. 

v.  Murray,  170,  337. 

Boggs  v.  Merced  Co.   (14  Cal  279), 

133,  135. 

Boileau  v.  Heath,  189. 
Bonner  v.  Meikle,  439. 
Bonson  v.  Jones,  218. 
Book  v.  Justice  Co.  33,  54,  56,  95, 

104,    141,    146,    153,    154,    176, 

442. 
Boston   Co.   v.   Montana   Co.    173, 

247,  329,  332. 
Bowman  Lode,  42. 

v.  Patrick,  252. 

Bracken    v.     Preston    (1    Pinney, 

584),  328. 
Bradbury   v.   Davis    (5   Colo.   265), 

277. 
Bradley  v.  Harkness    (26  Cal.  69), 

1 83 

v.  People,  312. 

Brady  v.  Husby,  38,  318. 
Bramlett  v.  Flick,  74,  82,  314. 
Branagan  v.  Dulaney,   141. 
Brewster    v.    Shoemaker,    32,    46, 

172,   230. 
Brown  v.  Caldwell  (10  8.  &  R.1U), 

310. 

—  v.    '49    Co.     (15    Cal.    152), 
225,  496. 

—  v.  Levan,  53,  74. 

—  v.  Oregon  Co.  83,  84,  113, 
123. 

Brownfield  v.  Bier,  204. 
Brunay  v.   Mayfield,   111,   436. 
Bryan  v.  McCaig,  43. 
Buckeye  Co.  V.  Carlson,  246,  273. 


Buckley  v.  Fox,  283. 

v.  Port  Henry  Co.  323. 

Bullion  Co.  v.  Croesus  Co.   (2  Nev. 
168),  151,  177. 

T.    Eureka    Co.    (5    Utah, 

151),  150,   333. 

Bullis  v.  Noyes,  268. 

Bunker  Hill  Co.  v.  Empire  St.  Co. 

47,  168,  451. 
Burdge  T.  Underwood   (6  Cal.  >{5), 

219. 
Burke  v.  Bunker  Hill  Co.  440. 

v.   McDonald,   21,    29,   32, 

152,  314,  442,  446. 

Burkhard  v.  Mitchell,  268. 
Burnham  v.  Freeman,  183. 
Bush  v.  Sullivan  (3  G.  Greene, 

3',^,  269. 

Buskirk  v.  King,  330. 
Butler  v.  Rockwell,  256. 
Butte  &  Boston  Co.  in  re,  424. 
Butte  Co.  v.  Frank,  14,  235. 

v.  Montana  Co.  187. 

v.   Sloan,  204,  206. 

v.  Societe,  153,  171. 

v.    Vaughn    (11   Cal.   1^3), 

181. 
Byard  v.  Holmes  (33  N.  J.  L.  119), 

256. 
Byrne  v.  Crafts,  184. 

Cahoon  v.  Bayaud,  273. 
Caldwell    v.    Fulton     (31    Pa.    St. 

J,75),  218. 

Caley  v.  Portland,  265. 
Calhoun  Co.  v.  Ajax  Co.  132,  133, 

141,  231. 

Cambers  v.  Lowry,  499. 
Cameron  v.  Seaman  (69  N.  Y.  S96) , 

402. 
Campbell  v.  Ellett,  46,  226. 

v.   Rankin    (99   U.  S.  261), 


82. 


v.  Silver  Bow  Co.,  189. 


Capner  v.  Flemington  Co.   (3  N.  J. 

Eq.  //67),  326. 

Cardelli  v.  Comstock  Co.  184. 
Carney  v.  Arizona  Co.  106. 
Carr,  in  re,  337. 
Carson  v.  Hayes,  209. 
Carson    City    Co.    v.    N.    Star    Co. 

58,     133,    134,    152,    161,    162, 

165,  176. 

Casey  v.  Thieviege,  204. 
Gates  v.  Producers  Co.  135. 


TABLE  OF  CASES  CITED. 


481 


Catron  v.  Old,  162. 

Chadbourne  v.  Davis  (9  Colo.  581), 

87. 
Chamberlin  v.  Collinson  (45  Iowa, 

429),  322. 
Chambers  v.  Brown,  322. 

v.  Harrington,  94. 

v.  Jones,  133. 

Champion  Co.   v.   Cons.   Wyoming 

Co.   (75  Cal.  78),  142,  439. 
Chapman   v.   Toy   Long    (/,   Saicy. 

28),  106,   328. 

Chappius  v.  Blankman,  239. 
Charter  Oak  Co.  v.  Stephens,  236, 

339. 
Chatham  Co.  v.  Moffatt  (147  Mass. 

403),  256. 
Cheesman   v.    Hart    (42   Fed.   98), 

138,  165,  318. 
v.  Shreeve  (37  Fed.  36),  37, 

42,  113,  121,  122,  153,  155,  170, 

318,  320. 

Cherokee  Co.  v.  Britton,  323. 
Cherry    Val.    Co.   v.    Florence    Co. 

306. 

Childers  v.  Neely,  236. 
Chung  Kee  v.  Davidson,  236. 
Clare  v.   Peo,   311. 
Clark  v.  Barnard,  340. 

v.  Fitzgerald,  162. 

Clarno  v.  Grayson,  263. 
Clary  v.  Hazlitt,  134,  203. 
Clavering  v.  Clavering  (2  P.  Wms. 

388),  326. 

Clear  Water  Co.  v.  San  Garde,  75. 
Cleary  v.  Skiffich,  214. 
Cleopatra  Co.  v.  Dickinson,  322. 
Clifton  Co.   v.   Dye,  209. 
Clipper  Co.  v.  Eli  Co.  205,  207. 
Coal  Creek  Co.  v.  Moses    (15  Lea. 

Tenn.  300),  320. 
Cochrane  v.  Justice  Co.  267. 
Coffee  v.  Emigh,  142,  280. 
Cole  v.   Cady,  334. 
Cole  Co.  v.  Virginia  Co.    (/  »S'rnr//. 

680),  334. 
Coleman  v.  Curtis,  96,  103. 

v.  Davis,  87. 

Colman  v.  Clements   (23  Cal.  2>,r>). 

9,  102. 
Colo.  Cent.  Co.  v.  Turck,  163.  16.",. 

320. 

Colo.  C.  &  I.  Co.  v.  U.  S.  221. 
Colo.  F.  Co.  v.  Pryor,  265,  322. 

16 


Colo.    I.    W'ks.    v.    S.    Grande   Co. 
303. 

v.  Taylor,  241. 

Colo.  Midland  Ry.  v.  O'Brien,  324. 
Columbus  Co.  v.  Tucker,  209. 
Comstock,  in  re,  303. 
Cone  v.  Roxana  Co.  231. 
Conlin  v.  Kelley,  193. 
Conrad  v.  Saginaw  Co.  266. 
Cons.  Coal  Co.  v.  Baker,  235. 

—  v.  Peers,  269. 

Cons.  Rep.  Co.  v.  Lebanon  Co.    (9 

Colo.  343),  19,  26. 
Cons.    Wyoming  Co.   v.    Champion 

Co.  143,  152,  162,  170. 
Conway  v.  Hart,  120. 
Cooper  v.   Roberts,  221. 
Cooper  Co.  v.  Ferguson,  303. 
Coosaw  Co.  v.  Carolina  Co.  334. 

—  v.  Farmers  Co.  334. 
Copper  Globe  Co.  v.  Allmann,  42, 

75,  80,  82. 
Corning    T.    Co.    v.    Pell     ( '/    Colo. 

507),  226. 

Cosmopolitan  Co.  v.  Foote,  166. 
Cosmos  Co.  v.  Gray  Eagle  Co.  317. 
Courchaine  v.  Bullion  Co.   ( J  iYcr. 

369),  83. 
Cox  v.  Clough,  340. 

—  v.  Prentice,  342. 
Craig    v.    Thompson,    53,    79,    88. 

12** 

Crane  v.  Salmon,  277. 
Crane's    Gulch    Co.    v.     Scherrer. 

203. 

Craw  v.  Wilson.  272. 
Crawford  v.  Bellevue  Co.  268. 
Credo  Co.  v.  Highland  Co.  74. 
Creede  Co.  v.  Uinta  Co.  231. 
Crescent    Co.    v.    Silver    King   Co. 

330. 

Croesus  Co.  v.  Colorado  Co.  55. 
Cronin  v.  Bear  Creek  Co.  315.  44:5. 
Crown  Point  Co.  v.  Buck,  58,  101. 

v.  Crismon,  48,  102. 

Cullacott    v.    Cash    Co.     (8    Colo. 

179),  56. 

Dahl  v.  Raunheim   (132  I  .  N.  jinn). 

205,.  206. 

Darger  v.  Le  Sieur,  74. 
Dark  v.  Johnston  (55  Pa.  St.  /<>'i), 

270. 

Davis  v.  Gale   (32  Cal.  26),  181. 
-  v.  Graham,  325. 


482 


TABLE  OP  CASES  CITED. 


v.  Weibbold,  134,  220,  224. 

Debris  Cases,  211. 

Deeney  v.  Mineral  Co.  36,  46,  113, 

123,  443,  448. 

Deffeback  v.  Hawke,  134,  223. 
De  Graffenried  v.  Savage,  270. 
Delaney  Case,  in  re,  193. 
Del  Monte  Co.  v.  Last  Chance  Co. 

47,  58,  138,  162. 

v.  New  York  Co.  162,  165. 

De  Noon  v.  Morrison  (83  Cal.  163), 

94. 
Depuy  v.   Williams    (26  Cal.  310), 

86. 

Derry  v.  Ross   (5  Colo.  295),  85. 
Dibble  v.  Castle  Chief  Co.  102. 
Dillon  v.  Bayliss,  76. 
Dodge   v.    Marden    (7   Or  eg.    456), 

183. 
Doe  v.  Sanger,  161,  165. 

v.  Tyley,  77. 

v.  Waterloo  Co.  36,  47,  48, 

57-,  124,  146,  154,  164,  170,  255, 
284,  442,  446. 

v.   Wood    (2  Barn.  &  Aid. 


724),  269. 
Doherty  v.  Morris,  86,  93,  116. 
Donahue  v.  Johnson,  334. 
Donnelly  v.  Booth  Co.  323. 
Dorr  v.  Hammond,  87. 
Doster  v.  Friedensville  Co.  190. 
Dougherty  v.  Chesnutt,  320. 
v.  Creary  (30  Cal.  290),  87, 

266. 

Dower  v.  Richards,  224. 
Drake  v.  Lady  Ensley  Co.  209. 
Driscoll  v.  Dunwoody,  325. 
Drummond  v.  Long   (9  Colo.  538), 

53. 

Ducie  v.  Ford,  451. 
Duffield  v.  Rosenzweig,  321. 
Dugdale   v.    Robertson    (3  Kay   A 

J.  695),  337. 

Duggan  v.  Davey,  159,  164,  170. 
Duncan  v.  Fulton,  120,  121. 
Dundas  v.  Muhlenberg  (35  Pa.  St. 

351),  321.      - 
Dunham  v.  Kirkpntrick,  193. 

-  v.  Seiberling,  326. 
Dunlap  v.  Pattison,  57. 
DuPont  v.  Tilden,  287,  301. 
Du   Prat  v.    James    (65  Cal.   555), 

79,   94,   101. 

Durant  Case   (29  Fed.  354),  374. 
Durant  v.  Comegys,  252. 


-  v.  Corbin,  195. 
Durant  Co.  v.  Percy  Co.  320. 
Durgan  v.   Redding,  442. 
Duryea  v.  Boucher,  54. 

v.  Burt   (28  Cal.  569),  236. 

Dyke  v.  Caldwell,  182. 

v.  Nat.  Tr.  Co.  320. 

v.  Whyte,  235,  318. 

Eagle-Badger  Case,  42. 
Earnan  v.  Bashford,  241. 
Eaton  v.  Norris,  83. 
Eberle  v.  Carmichael,  95. 
Eberville  v.  Leadville  Co.  339. 
Eclipse  Co.  v.  Spring,  144,  146. 
Edwards    v.    Allouez    M.    Co.     (SS 

Mich.  46),   210. 

Ege  v.  Kille  (84  Pa.  St.  333),  320. 
Eilers  v.  Boatman    (3  Utah,  159), 

79. 

Elder  v.  Horseshoe  Co.  109,  111. 
Electro-Magnetic   Co.   v.   Van  An 

ken,  44. 

Ellet  v.  Campbell,  46,  229. 
Emerson  y.  McWhirter,  10,  101. 
Emma    Mine    Case    (2   Legal    Ga 

zette,  81),  327. 
Empire  Co.  v.  Bonanza  Co.  320. 

v.    Bunker   Hill    Co.    130, 

.      132,   133,  138,   150. 

v.  Tombstone  Co.  168. 


English  v.   Johnson   (17  Cal.  107), 

26,  83. 
Ennor  v.  Barwell  (1  DeG.,  F.  d  J. 

529),  337. 
Enterprise  Co.   v.   Rico-Aspen   Co. 

226,  227,  231,  232. 
Equator  Co.  v.  Guanella,  268. 

-  v.  Marshall  Co.  188. 

Erhardt    v.    Boaro     (2    McCrary, 

141;  113   U.  S.  527,  537),   29,   30, 

36,   48,   82,   101,   227,   316,   319, 

328,  333. 
Ernest    v.    Vivian    (33   L.    J.    Ch. 

513),  328. 

Erwin  v.  Perego,  32,  121. 
Erwin's    App.    (12   Atl.   149),    189, 

190,  210. 
Eureka  Co.  v.  Bass,  324. 

—  v.  Richmond  Co.   (4  Sawy. 

302),  130,  151,  153,  160. 

Fairplay  Co.  v.  Weston,  184. 
Farmington   Co.    v.    Rhymney   Co. 
74. 


TABLE  OF  CASES  CITED. 


483 


Faxon  v.  Barnard  (2  McGrary,  44), 

79,  81,  316. 

Felton  v.  West  Co.  302. 
Ferris  v.  Coover,  85. 
Field    v.     Beaumont    (1    Swanst. 

204),  327. 

v.  Grey,  316. 

Finerty  v.  Fritz  (5  Colo.  174),  250. 
Fissure  Co.  v.  Old  Susan  Co.  74, 

76,  95,  231,  232. 
Fitzgerald  v.  Clark,  153. 
Fitzpatrick  v.  Montgomery,  208. 
Flagstaff  Co.   v.   Tarbet    (98  U.  8. 

463),  147,   161,   167,   173. 
Flavin  v.  Mattingly,  76. 
Fleming  v.  Daly,  43. 
Flick  v.  Hahn's  Peak  Co.  186. 
Foote   v.    National    Co.    (2   Mont. 

402),   43. 
Forbes  v.   Gracey    (94   U.   S.  762), 

11,  234. 

Foster  v.  Lumbermans  Co.  190. 
v.  Weaver  (118  Pa.  St.  42 ), 

320. 
420    Mining    Co.    v.    Bullion    Co. 

(9  Nev.  840;  3  Sawy.  634),  838, 

339. 
Fox  v.  Hale  Co.  306,  343. 

v.  Mackay,  307. 

Freezer  v.  Sweeney,  201. 
Fremont  v.  Seals  (18  Gal.  433),  285. 

v.  IT.   S.  285. 

French  v.  Lancaster,  305. 

Frisholm  v.  Fitzgerald,  123. 

Fritts  v.  Palmer,  304. 

Fuhr  v.  Dean  (26  Mo.  116),  269. 

Fuller  v.  Harris,  9,  117. 

v.  Swan  River  Co.  (12  Colo. 

12),  209,  329. 

G.  V.  B.  Co.  v.  Bank,  288,  301. 
Gale  v.  Best,  133,  220. 
Gamer  v.  Glenn,  73,  76. 
Gartteld  Co.  v.  Hammer,  79. 
Garrard  v.  S.  P.  Mines,  133. 
Garthe  v.  Hart  (73  Gal.  541),  112. 
Gaylord  v.  Place,  202. 
Gelcich  v.  Moriarity  (53  Gal.  217), 

Gel  wicks  v.  Todd,  183. 

Genet  v.  Delaware  Co.  189. 

Ghost  v.  Shuman,  322. 

Gibben  v.  Atkinson  (31  N   W.  570), 

268. 
Gibson  v.  Chouteau,  123. 


Giffln  v.  Pipe  Lines,  310. 

Gildersleeve  v.  New  Mex.  Co.  286. 

Gill  v.  Weston,  193. 

Gillis  v.  Downey,  92. 

Gilpin  v.  Sierra  Nevada  Co.,  159. 

Gilpin   M.    Co.    v.   Drake,   47,    53, 

322. 

Ginocchio  v.  Amador  Co.  183. 
Girard  v.  Carson,  40,  318. 
Gird  v.  California  Co.  38,  69,  76, 

94,  192,  195. 
Glacier    Mt.    Co.    v.    Willis,    245, 

338. 

Glasgow  v.  Chartiers  Co.  87,  265. 
Glass  v.  Basin  Co.  54. 
Gleeson  v.  Martin  White  Co.    (IS 

Nev.  U&),  8,  147,  314. 
Gohres  v.  Illinois  Co.  21,  46,  195. 
Golden  Fleece  Co.  v.  Cable  Co.   (12 

Nev.  312),  8,  147,  314. 

R.  Co.  v.  Buxton  Co.  321. 

Terra   Co.   v.   Mahler,   32, 

39. 

Gold    Hill    Co.    v.    Ish     (5    Oreg. 

104),  221. 
Gonu    v.    Russell     (3    Mont.    358), 

26,   47,    99. 

Goodwin  v.  Colorado  Co.  303. 
Gordon  v.   Darnell    (5  Golo.   302), 

250. 
Gore   v.   McBrayer    (18   Gal.   583), 

9,   29,   57. 

Gorman  Co.  v.  Alexander,  282. 
Gray  v.  Truby,  44. 
Gray  Copper  Lode,   124. 
Great  West  Co.   v.   Woodmas   Co. 

257. 

Greer  v.  Heiser,  181. 
Gregory    v.    Pershbaker    (73    Gal. 

109),  80,  192. 
Grey  v.  Northumberland    (13  Ves. 

Jr.  235),  327. 
Griffin  v.  Hurley,  240. 
Guild  Co.  v.  Mason,  307. 
Gwillim   v.   Donnellan    (115   U.   8. 

45),  13,  40,  124. 

Hadley  Co.  v.  Cummings,  241. 
Hall  v.  Arnott,  123. 

v.  Duke  of  Norfolk,  340. 

v.   Hale,   93. 

v.  Johnson    (S  Hurl,  d  G. 

589),  323. 

v.  Kearny,  95,  102. 

Hallack  v.  Traber,  118. 


484 


TABLE  OF  CASES  CITED. 


Hamburg  Co.  v.   Stephenson,  214, 

216. 
Hamilton  v.  Ely,  327. 

v.  S.  Nevada  Co.   (33  Fed. 

562),  339. 

Hammer  v.  Garfield  Co.   (130  U.  8. 

291),  73,  74,  283. 
Hammon  v.  Nix,  235. 
Hancock  v.  Keene,  325. 
Hannan  v.  Seidentopf,  244. 
Hanson  v.  Fletcher,  21,  55,  74. 
Hardin  Lode  Case.  (See  Pollard  v. 

Shivelv.) 
Harkness  v.  Burton  (39  Iowa,  101), 

86. 

Harlan  v.   Harlan,  310. 
Harrington   v.   Chambers,   33,   35, 

153,   447. 
Harris  v.  Equator  Co.  (8  Fed.  863), 

13,   317,   318,    339. 

v.   Kellogg,   102,  104,   283. 

Hartford  Co.  v.  Cambria  Co.  321. 
Hartman  v.  Smith,  214,  216. 
Harvey  v.  Ryan   (1,2  Cal.  626),  10. 
Hauswirth  v.  Butcher,  21,  46. 
Haws  v.  Victoria  Co.  70,  82,  315. 
Hawxhurst  v.  Lander  (£8  Cal.  331), 

82. 

Hayden  v.  Brown,  74. 
Hayes  v.  Lavagnino,  31,  154,  155. 
Haynes  v.  Briscoe,  108. 
Healey  v.  Rupp,  33,  34,  343. 
Heaney  v.  Butte  Co.  329. 
Hecla  Co.  v.  O'Neill,  301. 
Hector  Co.  v.  Valley  View  Co.  88. 
Hendrie  Co.  v.  Holy  Cross  Co.  241. 
Hermocilla  v.  Hubbell,  222. 
Herriman    Co.    v.    Butterfield    Co. 

340. 

Herron  v.  Eagle  Co.  14. 
Hersey  v.  Tulley,  301. 
Hess  v.  Winder   (30  Cal.  3$),  19, 

26,   317,   328. 
Heydenfeldt  v.   Daney  Co.    (93  U. 

8.  634),  131,  222. 
Hicks  v.  Bell,  12. 
Higgins  v.  California  Co.  301. 
Hill  v.  King  (8  Cal.  337),  209. 
Hindson  v.  Markle  Co.  209. 
Hines  v.  Miller,  241. 
Hirschler  v.  McKendricks,  100, 
Hobart  v.  Ford  (6  Nev.  77),  186. 
Hoffman  v.  Beecher,  434. 
Holbrooke  v.  Harrington,   307. 
ITonaker  v.  Martin,  94,  99.  H4. 


Iloosac  Co.  v.  Donat,  266. 
Homer  v.  Watson  (79  Pa.  St.  2^2), 

218. 
Horsky  v.  Helena  Co.  334. 

v.  Moran.  224. 

Horst  v.  Shea,  339. 

Horswell    v.    Ruiz     (67    Cal.    Ill), 

79,  160. 

Hosford  v.  Metcalf,  86. 
Howe's  Co.  v.  Howe's  Ass.  337. 
Howeth  v.  Sullenger,  51,  124. 
Hugunin    v.    McCunniff     (2    Colo. 

367),  322. 

Hukill  v.  Myers,  267. 
Hulst  v.  Doerstler,  117. 
Humphreys    v.    Mooney     (5    Colo. 

282),   305. 
Hunt  v.  Eureka  Gulch  Co.  315. 

v.  Patchin,  114,  439. 

Hutchinson  v.  Kline,  218. 
Hyman  v.  Wheeler   (29  Fed.  5)7). 

154,  155. 

Iba  V.  Cent.  Assn.  446. 
Idaho  Co.  v.  Union  Co.  252. 

v.  Winchell,  241. 

Ingram  v.  Golden  Co.  267. 
Integral    Co.    v.    Altoona    Co.    87. 

318. 
Iron   Silver   Co.   v.   Campbell    (135 

U.   8.   286),   131,   170,   206,   207. 

424. 

v.  Cheesman,  155,  172. 

v.    Elgin    Co.     (118    U.    8. 

196),  48,  58,  160,  161,  173,  177. 
v.  Mike  and  Starr  Co.  154, 

160,   204,   205. 
Irwin    v.    Davidson    (3   Ircd.    Eq. 

311),  326,  327. 

v.  Strait,  184. 

Ivanhoe  Co.  v.   Keystone  Co.    (102 

U.  8.  167),  222. 

Jackson  v.  Dines,  283. 

v.  Roby,  94,  106,  314,  449. 

Jacob  v.  Day,  187. 

v.  Lorenz,  181,  183. 

James  v.  Emmet  Co.  323. 
Jamestown  Co.  v.  Egbert,  273. 
Jantzen  v.  Arizona  Co.  283. 
Jeffords  v.  Hine  (11  Pac.  351),  136. 
Jennings  v.  Beale,  330. 

v.   Rickard    (JO  Colo.  -W-Ti. 

272. 


TABLE  OF  CASES  CITED. 


485 


Jennison   v.    Kirk    (98   U.   8.   .',53), 

180,  185. 

Job  v.  Potton,  270. 
Johnson  v.  Buell  (4  Colo.  557),  147. 

v.   Mnnday,   442. 

v.   Sage,   301. 

-  v.  Young,  86,  115. 
Johnstone  v.  Robinson  (3  McCrary, 

42),  270. 
Johnstown 'Co.  v.  Butte  Co.  330. 

v.  Cambria  Co.   (32  Pa.  St. 

*  2J{1),   260. 
Jones    v.    Jackson     (9    Cal.    231), 

210. 

v.    Prospect   Co.    44,    152, 

163. 

Jordan  v.  Duke,  82,  100,  317. 

—  v.  Schuerman,  123. 
Joseph  v.  Davenport,  266. 
Jupiter  Co.   v.  Bodie  Co.    (11  Fed. 

666),  31,  32.  53,  94,  173. 
Jurgenson  v.   Diller.  241. 
Justice  Co.  v.  Lee,  281. 

Kahn  v.  Old  Telegraph  M.  Co.    (2 

Utah,  17  Jf),  133. 

Kannaugh  v.  Quartette  Co.  128. 
Keeler  v.  Green   (21  X.  J.  Eq.  27). 

269. 

v.  Trueman,  13. 

Kelly  v.  Fourth  Co.  287. 
Kendall  v.  San  Juan  Co.  305. 
Kevern  v.  Prov.  Co.  324. 

King    v.    Amy    Silver    Smith    Co. 
162,  163. 

v.  Edwards   (1  Mont.  235), 


99. 


v.  Thomas,  223,  339. 


Kinney  v.  Fleming,  54,  87. 

Kirk    v.    Meldrum,    83,    197,    198. 

449. 

Klein  v.  Davis,  327,  328. 
Klopenstine  v.  Hays,  94,  97. 
Knox  v.  Higby,  235. 
Koons  v.  Bryson,  317. 
Kramer  v.  Settle   (1  Ida.  ',85),  94. 

101. 

Lacey  v.  Woodward,  96. 
Lacustrine  Co.  v.  Lake  Guano  Co. 

189. 
Lakin  v.  Dolly,  133. 

v.  Roberts,  133. 

v.  Sierra  Buttes  Co.  96. 


Lalande  v.  McDonald,  79. 
Lamar  Co.  v.  Amity  Co.  186. 
Lampman  v.  Milks,  184. 
Largey  v.  Bartlett,  256. 
Larkin  v.  Upton,  39,  150. 
Lamed  v.  Jenkins.  148,  223. 
Last   Chance   Co.    v.    Bunker   Hill 

Co.  181. 
v.  Tyler  Co.  126,  143.  162. 

165,  167,  451. 
Laughlin  v.  Hawley,  279. 
Law  v.  Grant,  465,  496. 
Lawrence  v.  Gayetty,  256. 
v.   Robinson    (4  Colo.  567 1 , 

272. 
Leadville   Co.   v.    Fitzgerald,    152, 

155,   164,   170. 
Lebanon   Co.   v.    Cons.    Republican 

Co.   247. 

v.  Rogers,  148,  340. 

Ledoux  v.  Forester,  21. 

Lee  v.    Stahl    (13   Colo.  17J,),   141, 

143,   146. 
Leggatt  v.  Stewart   (5  Monl.  J07'\. 

Lehigh  Co.  v.  Bamford,  256. 

v.  New  Jersey  Co.  310. 

v.  Trotter,   307,   334,   342. 

Lendberg  v.  Brotherton  Co.  324. 

Lewey  v.  Frick  Co.  340. 

Lewis  v.  Marsh   (8  Hare.  97),  337. 

Lime  Lode  Case,  174. 

Lincoln  v.  Rodgers   (1  Mont.  217), 

208,  210. 

Lindemann  v.  Belden  Co.  239. 
Lindsley  v.  Union  Co.  330. 
Little  Gunnell  Co.  v.  Kimber,  45. 

94,  96,  99,  113. 
Josephine  Co.  v.  Fullerton. 

143. 
Pittsburgh  Co.  v.  Amie  Co. 

39,  40. 

v.     Little    Chief    Co.     (11 


Colo.  223),   320. 
Schuylkill  Co.  v.  Richards 

(57  Pa.  St.  Vf2),  189. 
Lockhart  v.  Johnson,  80,  82. 
v.  Rollins  (21  Pac.  £13),  93, 

96,  112,  117. 

v.   Wills,  58,  81,  286. 

Lockwood    v.     Lunsford     (56    Mo. 

68),  327,  328. 

Locust  Co.  v.  Gorrell,  178. 
Lohmann  v.  Helmer,  283. 
Lone  Jack  Co.  v.  Megginson.  282. 


486 


TABLE  OF  CASES  CITED. 


Lonsdale  v.  Curwen  (3  Bligh  0.  8. 

168),  337. 

Lord  v.  Pueblo  Co.  325. 
Lorimer  v.  Lewis   (1  Morris   (la.) 

253),  126. 
Lowry  v.  Silver  City  Co.  117,  121. 

Maeris    v.    Bicknell    (7   Gal.    262), 

181,   184. 
Magnet  Co.  v.  Page   (9  Nev.  346), 

328. 

Maher  v.  Shull,  241. 
Maine  &  Phoenix  Case,  41. 
Mallett  v.  Uncle  Sam  Co.   (1  Nev. 

188),   13,   85,   86. 
Malone  v.  Big  Flat  Co.  239. 
Maloney  v.  King,  170,  330,  333. 

v.  Love,  267. 

Mammoth  Co.'s   App.    (54  Pa.   St. 

183),  327. 

Manning  v.  Strehlow,  442,  447. 
Manuel  v.  Wulff,  281. 
Marburg  Lode,  451. 
Marshall  v.  Harney  Peak  Co.  35, 

82,  85. 

Marshall  Co.  v.  Kirtley,  315. 
Martinez  v.  Earnshaw,  307. 
Marvin  v.  Brewster  Co.   (55  N.  Y. 

598),  218. 

Mason  v.  Sieglitz,  252. 
Massot    v.    Moses    (3    8.    C.    168), 

172,  269. 
Mather  v.  Trinity  Church   (3  8.  & 

R.  509),  310. 
Mattingly    v.    Lewisohn,    77,    95, 

102,  315. 

Meagher  v.  Reed,  266. 
Mellors  v.  Shaw  (1  Best  &  8.  437), 

324. 
Merced    Co.    v.    Fremont    (7    Gal. 

317),  327,  328. 
Mercnr  Co.  v.  Spry,  235. 
Merritt  v.  Judd  (14  Gal.  59),  13. 
Metcalf  v.  Prescott  (10  Mont.  283); 

76,  77. 

Meylette  v.   Brennan,   272. 
Michael  v.  Mills,  40. 
Mickle  v.  Douglass,  266. 
Mike  &  Starr  Case,  154,  160,  204, 

205. 
Miller  v.  Chester  Co.  267. 

v.  Girard,  40. 

Mills  v.  Fletcher,  93,  96. 

v.  Hart,  117. 

Minah  Co.  v.  Briscoe,  117. 


Minnesota  Co.  v.  Brasier,  340. 

Miser  v.  O'Shea,  210. 

Mitchell  v.  Cline,  195. 

Mollie    Gibson    Co.    v.    Thatcher, 

248. 

Monroe  v.  N.  Pac.  Co.  322. 
Montana   Co.   v.   Boston   Co.    132, 

138,   247,  329. 

v.  Clark   (^2  Fed.  626),  58, 

160,  164,  329. 

v.  Gehring,  211. 

v.  Livingston,  235.  • 

v.  St.  Louis  Co.  246,  317, 


337. 

Ry.  v.  Migeon,  204. 

Moody  v.  McDonald    (4  Gal.  297), 

322. 

Mooney  v.  York  Co.  322. 
Moore  v.   Ferrell    (1  Ga.  7),  327, 

328 
—  v.  Robbins,  135. 

v.  Smaw  (17  Gal.  199),  12, 

220,   285. 

More  v.  Massini  (32  Gal.  590),  328. 
Morenhaut  v.  Wilson  (52  Gal.  263), 

102. 

Morgan  v.  Tillotson,  106,  114. 
Morgenson  v.  Middlesex  Co.  141. 
Moritz  v.  Lavelle  (77  Gal.  10),  272. 
Morris   v.    DeWitt    (5   Wend.   71), 

325. 

Morrison  v.  Regan,  53,  57,  75,  123. 
Morton   v.    Solambo   Co.    (26   Gal. 

527),  57. 
Mt.     Diablo     Co.     v.     Callison     (5 

Sawy.  439),  93,  94,   102,   154. 
Mt.  Rosa  Co.  v.  Palmer,  207. 
Mt.  View  Co.  v.  McFadden,  440. 
Moyle  v.  Bullene,  39,  123,  223. 
Moynahan  v.  Prentiss,  322. 
Mudsill  Co.  v.  Watrous,  256,  342. 
Muldoon  v.  Brown,  76,  448. 
Muldrick  v.  Brown,  33,  43. 
Mullan  v.  U.  S.  135. 
Murley  v.  Ennis   (2  Colo.  300),  29, 

57,  87,   270,  272. 

Murphy  v.  Cobb  (5  Colo.  281),  312. 
Murray  v.  Polglase,  92. 
Murray  Hill  Co.  v.  Havener,  104, 

o-j  o 

Muskett  v.  Hill,  270. 
Myers  v.  Hudson  Co.  323. 

v.    Spooner    (55   Gal.   257), 

85. 
McAndrews  v.  Burns,  323. 


TABLE  OF  CASES  CITED. 


487 


McCahan  v.  Wharton  (121  Pa.  424), 

265. 

McCann  v.  McMillan,  75,  84,  86. 
McCarthy  v.  Speed,  76,  116,  207, 

225. 

McCord  v.  Oakland  Q.  Co.  107. 
McCormick  v.  Baldwin,  99. 
v.   Varnes    (2   Utah,  855), 

173. 

McCowan  v.  McLay,  77,  339. 
McDonald  v.  Montana  Co.  195. 
McEvoy   v.    Hyman    (25   Fed.   539, 

596),  56,  122,  448. 
McFadden   v.   Mt.    View   Co.    306, 

442. 

McFeters  v.  Pierson,  13. 
McGarrity    v.    Byington    (12    Gal. 

426),  94. 
McGinnis  v.   Egbert    (8  Colo.  41), 

32,  40,  42,  48,  81,  86,  93,   104, 

105,  122,  314,  447,  448. 
McGoon   v.    Ankeny    (11  III.   558), 

87. 
Mclntyre  v.  Ajax  Co.  307. 

v.  Mclntyre  Co.  265. 

McKay  v.  McDougall,  99. 
McKee  v.  Brooks,  269. 
McKenzie  v.  Poor  Man  Mines,  301. 
McKinley  v.  Wheeler,  57. 
McKinley  Co.  v.  Alaska  Co.   198, 

281. 

McKinstry  v.  Clark,  44,  79. 
McLaren  v.  Byrnes,  239. 
McLaughlin  v.  Del  Re,  189,  211. 

v.  Thompson,  87,  273. 

McLure  v.  Sherman,  329. 
McNeil  v.  Pace,  114. 
McShane  v.  Kenkle,  £3. 

National  Co.  v.  Weston,  310. 
Neilson  v.  Champaigne,  92. 
Neuebaumer  v.  Woodman,  83. 
Neuman  v.  Dreifurst,  107. 
Nevada  Co.   v.  Home  Co.   31,   32, 

83,  105,   194. 

v.  Miller,  194. 

Newark  Co.  v.  Upson,  333. 
New  Dunderberg  Co.  v.  Old,  320. 
Newman  v.  Barnes,  449. 

v.  Newton,  446. 

New    Mercer    Co.    v.    Armstrong, 

183. 

New  York  Co.  v.  Rogers,  323. 
Nichols  v.  Mclntosh,  86,  87. 
Niles  v.  Kennan,  86,  318. 


No  Mistake  Lode,  438. 
Noonan  v.  Caledonia  Co.  305. 
North  Am.  Co.  y.  Adams,  87,  183. 
Northmore  v.  Simmons,  7,  85,  93. 
North  Noonday  Co.  v.  Orient  Co. 

(1  Fed.  522,  11  Id.  125),   30,   32, 

33,  79,  152,  282,  317. 
Noteware    v.     Stearns     (1    Hont. 

311),   185. 
Noyes  v.  Black,  79. 

v.  Mantle,   204,  205,   208. 

No.   5  Co.  v.   Bruce    (4  Colo.  293), 

273. 

O'Donnell  v.  Glenn,  34,  43,  76. 
O'Keefe  v.  Cannon,  203,  204. 
O'Keiffe    v.    Cunningham    (9    Cal. 

589),  210,  211. 
Old   Tel.    M.    Co.    v.    Central    Co. 

(1  Utah,  331),  327. 
Olive  Co.  v.  Olmstead,  194. 
Omaha  Co.  v.  Tabor  (13  Colo.  41), 

270,  309,  321. 
Omar  v.  Soper   (11  Colo.  380),  80, 

124,   141. 

Oolagah  Co.  v.  McCaleb,  306. 
Ophir    Co.    v.    Carpenter    (4   Nev. 

534),  184. 
Oppenlander  v.  Left  Hand  Co.  181, 

185. 
Oreamuno   v.    Uncle    Sam    Co.    (1 

Nev.  215),   85. 
Oregon  Co.  v.  Trullenger   (3  Oreg. 

1),    184. 

O'Reilly  v.  Campbell,  101,  283. 
Original  Co.  v.  Winthrop  Co.  7,  85. 
Ormond  v.    Granite  Mt.   Co.    338, 

343. 

Ormsby  v.  Budd,  256. 
Oscamp  v.  Crystal  R.  Co.  100. 
Osgood  v.  Bauder,  322. 
Osterman  v.  Baldwin,  282. 
Otaheite  Co.  v.  Dean,  211,  329. 
Overman  Co.  v.  Corcoran  (15  Nev. 

417),  30. 
Oviatt  v.  Big  Four  Co.  184. 

Pacific  Co.  v.  Spargo  (16  Fed.  348), 

165. 

Packer  v.  Heaton  (9  Cal.  569),  94. 
Page  v.  Fowler,  310. 

v.  Summers    (70  Cal.  121), 

273. 

Palmer  v.  Uncas  Co.  239. 
Pantzar  v.  Tilly  Co.  323. 


TABLE  OF  CASES  CITED. 


Pardee  v.   Murray    ('/  Mont.  23-',}, 

141,  145. 

Parker  v.  Furlong,  327. 
Parley's  Park  Co.  v.  Kerr,  9.  22. 
Parrot    Co.    v.    Heinze,    162.    304, 

328. 

Parrott  v.  Palmer.   327. 
Patchen  v.  Keeley,  321. 
Patrick  v.  Colorado  Co.  307. 
Patterson   v.    Hewitt,   327. 
v.  Hitchcock   (3  Colo.  533), 

25.    20.    3G,    80,    129.    147,    149, 

274. 

v.  Tarbell,  56. 


Paul  v.  Cragnas,  266. 

Paull  v.  Halferty    (63  Pa.  St.  J,6) , 

501. 
Peabody  Co.  v.  Gold  Hill  Co.   25, 

134.   135,   338. 

Pelican  Co.  v.  Snodgrass,  99,  112. 
Penn  v.  Oldhauber,  95. 
Pennsylvania  Co.  v.  Bales,  315. 
People  v.   De  France,  337. 

-  v.   District  Court,  188. 

-  v.  Page,  310. 
v.  Sloper,  310. 

v.   Williams    (35  Cal.   <;r/». 

311. 

Perego  v.   Dodge.  442. 
Perry  v.  Ricketts  (55  III.  234),  323. 
Petroleum  Co.  v.  Coal  Co.  273. 
Pfeiffer  v.  University,  187. 
Pharis   v.    Muldoon    (75   Cal.   28.'f ) , 

98. 
Phenix   Co.   v.   Lawrence    (55  Cal. 

143),   78. 

Philadelphia  Co.  v.  Taylor,  178. 
Philpotts  v.   Blasdel    (8  Nev.  61), 

247. 

Phipps  v.  Hully  (18  Xet'.  133).  342. 
Phrenix  Co.  v.   Scott,  14. 
Pike's  Peak  Lode,  224,  424. 
Pittsburg  Co.  v.  Glick,  343. 

v.  Greenlee,  267. 

v.  Spooner,  301. 

Plummer  v.  Hillside  Co.  218,  267. 
Pollard   v.    Shively    (5   Colo.  309), 

52,  55,  56. 
Porter  v.  Noyes,  87. 
Portland  Co.  v.  Flaherty,  323. 
Poujade  v.  Ryan,  38,  70. 
Power  v.   Klein,   329. 
Presidio  Co.  v.  Bullis,  252. 
Preston  v.  Hunter,  75,  81. 
Prosser  v.  Parks  (18  Cal.  47),  9. 


Protector  Lode,  224. 
Providence  Co.  v.  Burke.  75,  112. 
282,   283,   442. 

-  v.  Marks,  315,  440. 
Puget  Co.  in  re,  342. 
Purdiim  v.  Ladin,  75. 

Quigley  v.  Gillett.  102.  449. 
Quimby  v.   Boyd.  53.  77,  95,   446. 
Qiiincy   Co.   v.    Hood    (77  111.   «tfi, 

323. 

Quinlan  v.  Noble,  180. 
Quirk  v.  Falk  (47  Cal.  .J5.J).  183. 

Rader  v.   Allen,   136. 

Raisbeck  v.  Anthony,  151,  153. 

Rankin's   App.    329. 

Kara  Avis  Co.  v.  Bouscher,  239. 

Raunheim  v.  Dahl,  128,  206. 

Raymond  v.  Johnson,  272. 

Real    del   Monte   Co.    v.    Pond   Co. 

(23  Cal.  82),   327. 
Reese  v.  Bald  Mt.  Co.  241. 

v.  Morgan  Co.  323. 

Regan  v.  Whittaker.  224. 
Rernmington  v.  Bandit,  94. 
Renshaw  v.  Switzer.  102. 
Reynolds  v.  Iron  S.  Co.   (116  U.  fa. 

687),    203.    318. 

v.  Pascoe,  39,  44. 

Riborado  v.  Quang  Pang  Co.  9. 
Rice  v.  Ege   (42  Fed.  661),  252. 
Richard  v.   Wolfing,  40. 
Richards  v.  Dower,  230. 
Richmond  Co.  v.   Eureka  Co.   173. 

v.   Rose.  21,  448. 

Riddle   v.    Mellon,    268. 
Rillston  v.  Mather,  324. 
Risen  v.  Wiseman.  82.  340. 
Riste  v.  Morton,  54,  111. 
Robinson  v.  Imperial  Co.    (5  AVr. 

44),   214. 

—  Co.  v.  Johnson.  301. 
Rockwell  v.   Graham    (9  Colo.  36). 

187,  439. 
Rogers  v.  Cooney  (7  Ner.  213),  189, 

211. 

v.  Ley  den.  325. 

Rorer  Co.  v.  Trout.  256,  265. 
Rose   v.    Richmond    Co.    134.    314, 

449. 
Rosenthal    v.    Ives    (12   Pac.   904), 

314,  449. 
Roseville   Co.   v.    Iowa    Gulch   Co. 

(15  Colo.  29),  14. 


TABLE  OF  CASES  CITED. 


Rough   v.    Simmons    (65  Cal.   227), 

445. 

Roxanna  Co.  v.  Cone,  143,  157. 
Royal  K.  Placer,  194. 
Royston  v.  Miller,  94,  105,  116. 
Rozecrans  Co.  v.  Morey.  302. 
Ruby  Co.  v.  Prentice,  302. 
Rush  v.  French,  57,  79. 
Russell  v.  Brosseau,  99. 

v.    Chumasero     (4    Mont. 

309),  76. 

St.  Clair  v.   Cash  Co.  320. 

St.   John  v.  Kidd   (26  Cal.  26.'t),  9. 

St.  Louis  Co.  v.  Kemp   (10%  U.  S. 

636).  93,  94,  133,  143,  165,  425. 
-  v.  Montana  Co.   150,  166, 

231,  327,  328,  329,  337,  451. 
Salmon  v.  Symonds,  221. 
Sampson  Co.  v.  Schaad,  323. . 
Sanders  v.  Noble,  38. 
Sands  v.  Cruikshank,  30. 
Saunders  v.  La  Purisima  Co.  222. 

v.  Mackey,  116. 

Scheel  v.  Alhambra  Co.  190. 
Schultz  v.  Keeler,  57. 
Schwab  v.  Beam,  180. 
Searle  Placer,  194. 

Sears   v.    Taylor    (4    Colo.   38),   9, 

83,  314. 
Seidler  v.  La  Fave,  54. 

v.  Maxfield,  76. 

Settle  v.   Winters,  252. 
Severson  v.  Bimetallic  Co.  302. 
Seymour  v.  Fisher,  120,  125,  128, 

234,  317. 

Shattuck  v.  Costello,  54,  112. 
Shaw  v.  Homer,  266. 

v.  Kellogg,  285. 

Sheaffer's  App.  333. 
Shepard  v.  Murphy,  70. 
Sherlock  v.  Leighton,  95,  102,  283. 
Shively  v.  Bowlby.  455. 
Shoshone  Co.  v.  Rutter,  125,  153, 

154,  247,  440,  442. 
Shreve  v.  Copper  Bell  Co.  33,  152, 

247. 

Sieber  v.   Frink,  87. 
Sierra  Co.  v.  Sears   (10  Nev.  3J,6), 

327. 

Silent  Friend  Co.  v.  Abbott,  306. 
Silver  Co.  v.  N.  C.  Sm.  Co.  343. 
Silver  Bow  Co.  v.  Clarke,  128,  131, 

134. 


Silver    City    Co.    v.    Lowry,    121, 

268,  448": 
Silver   Cord  Co.   v.  McDonald    (/'/ 

Colo.  t91),  323. 
Sisson  v.  Somers,  7,  41. 
Slavonian  Co.  v.  Perasich   (7  Fed. 

331),   96. 
Smallhouse    v.    Kentucky    Co.     (2 

Mont.  443),  239. 
Smart  v.  Jones,  189. 
Smelting   Co.   v.    Kemp.     (See  St. 

Louis   Co.   v.   Kemp.} 
Smith  v.  Belshaw,  324. 

v.   Bolles    (132   U.   8.   125), 

256,  322. 

v.  Hill,  224. 

v.  Idaho  Q.  Co.  310. 

v.  Jamison,  328. 

v.   Newell,  54,  55,  56,   75. 

v.    O'Hara    (43    Cal.    371), 

183. 

v.  Oxford  Co.   (42  N.  J.  L. 

467),  324. 

v.   Reynolds    (8  Fed.  696), 


250. 

v.  Sherman  Co.  245. 

Smoke  House  Lode  Case,  131,  223. 
Socorro  Co.  v.  Preston,  288. 
Souter  v.  Maguire,  70. 
South  End  Co.  v.  Tinney,  92,  115, 

317,   339,   340. 

South  Star  Lode,  205,  224,  424. 
South  West  Co.  v.  Smith,  323. 
South  Yuba  Co.  v.  Rosa,  180. 
Soyer  v.  Gt.  Falls  Co.  323. 
Sparrow    v.    Strong    (3   Wall.   97), 

11,  29. 

Spotts  v.  Gilchrist,  329. 
Sprague  v.  Locke,  334. 
Stahl  v.  Van  Vleck,  332. 
Standley  v.  Roberts,  268. 
Stanford  v.  Felt,  184. 
Stanley  v.  Mineral  Union,  222. 
State   v.   Berryman    (s  Nev.   262), 

311. 
rr v.  Burt  (64  N.  C.  619),  311. 

v.  District  Court,  164,  337. 

Stearns.Roger  Co.  v.  Brown,  333. 
Steel  v.  Gold  Co.  (18  Nev.  W),  102, 

429. 

Stemwinder  Co.  v.  Emma  Co.  21. 
Stephenson    v.    Wilson     (37    Wis. 

482),  339. 

Sterrett  v.  Northport  Co.  340. 
Stevens  v.  Gill,  152. 


490 


TABLE  OF  CASES  CITED. 


v.  Williams,  151,  155,  327. 

Steves    v.    Carson    (42   Fed.    821), 

315,  448. 

Stewart  v.  Stevens,  185. 
Stinchfleld  v.  Gillis,  142,  152,  173, 

246,  247. 

Stinson  v.  Hardy,  269. 
Stockbridge    Co.    v.    Cone    Works 

(102  Mass.  80),  321,  337. 
Stone  Lode  Case.     (See  Iron  Sil- 
ver Co.  v.  Elgin  Co.) 
Stonewall  Co.  v.  Peyton,  56. 
Stoughton  v.  Leigh  (1  Taunt.  402), 

249. 
Strahlendorf     v.      Rosenthal      (30 

Wis.  677,),  323. 

Strasburger  v.  Beecher,  102. 
Strepey    v.    Stark,    37,    122,    318, 

447. 

Strickler  v.  Colo  Springs,  181. 
Strickley  v.  Hill,  283,  444. 
Stuart  v.  Com.  235. 
Suessenbach  v.  Bank,  117. 
Suffolk  Co.  v.  San  Miguel  Co.  211. 
Sullivan  v.  Iron  Silver  Co.  207. 
Summerlin  v.  Fronteriza  Co.  301. 
Sunnyside  Co.  v.  Reitz,  320. 
Sweet  v.  Webber,  47,  79,  106,  315. 
Swigart  v.  Walker,  92. 

Table  Mountain  Co.  v.  Stranahan 

(20  Cal.  5$),  9. 
Tabor  v.  Dexter,  151. 
Talbott  v.  King,  131,  134. 
Talmadge  v.  St.  John,  77,  83. 
Tartar  v.  Spring  Creek  Co.  (5  Cal. 

395),   216. 
Taylor  v.  Middleton   (67  Cal.  656), 

76,  85. 
v.  Parenteau,  24,  55. 

v.  Thomas,  267. 

Tennessee  Co.  v.  Ayers,  302. 

—  v.  Hamilton,  209. 
Terrible  Co.  v.  Argentine  Co.  34. 
Territory  v.  McKey,  312. 
Thallmann    v.    Thomas,    83,    118, 

135. 

Thistle  v.  Frostberg  Co.  317. 
Thomas  v.  Chisholm,  57. 

v.    Oakley    (18   Ves.   184), 

328. 

Thompson  v.  Jacobs,  89. 

v-.  Mattern,  218. 

v.   Noble,   193. 

v.  Spray,  57,  70,  119,  124. 


Thornborough  v.   Savage  Co.  337. 

Tipping  v.  Bobbins,  270. 

Titcomb    v.    Kirk     (51    Cal.    288), 

185,   187. 
Tombstone  Co.  v.  Way  Up  Co.  155, 

176. 

—  T.  S.  Cases,  223. 
Tornanses  v.  Melsing,  282. 
Townsend  v.  Peasley  (35  Wis.  383), 

178. 

Travis  Co.  v.  Mills,  210. 
Tredinnick  v.  Red  Cloud  Co.  238. 
Trevaskis  v.  Peard,  86,  96. 
Trihay  v.   Brooklyn   Co.    (4   Utah, 

468),  323,  324. 
Tripp  v.  Dunphy,  93. 
Trotter  v.  Hecksher,  307,  342. . 
Tuolumne  Co.  v.  Maier,  30,  39. 
Turner  v.   Sawyer,  108,  111,  117, 

356,  436. 
Tyler  Co.  v.  Last  Chance  Co.  121, 

167,  337. 
Tynon  v.  Despain,  180,  185. 

Uinta  Co.  v.  Creede  Co.  133,  143. 
Ulmer  v.  Farnsworth,  178. 
Union  Co.  v.  Bank,  288. 

v.  Dangberg,  185. 

v.  Leitch,  38,  59. 

Union  Oil  Co.  in  re,  193,  195. 
U.  P.  Ry  Co.  v.  Jarvi,  323. 
United  Merthyr  Co.  in  re   (L.  R. 

15  Eq.  46),  320. 
U.  S.  v.  Blackburn,  221. 

v.  Carpenter,  306. 

v.  Copper  Queen  Co.  478. 

v.   Gear    (3  McLean,  571), 

328. 

v.  Iron  S.  Co.  93,  134,  135. 

v.  King,  135,  392. 

v.  Lynde,  478. 

v.  Marshall  Co.   (129  U.  S. 

579),  134. 

v.    North    Bloomfield    Co. 


210,   212. 


v.     Parrott      (McAllister, 


271),   327. 

v.  San  Pedro  Co.  285. 

v.   Smith,  8. 

v.  Trinidad  Co.  286. 

v.  Winona  Co.  135. 


U.  S.  Co.  v.  Pacific  Co.  306. 
Upton    v.    Larkin    (7   Mont.    449), 

30,  39,  55,  76. 
Utah  Co.  v.  Dickert  Co.  96,  117. 


TABLE  OF  CASES  CITED. 


491 


Utley    v.     Clark-Gardner    Co.     (4 
Colo.  369),  303. 

Valcalda    v.    Silver    Peak    Mines, 

216. 

Van  Buren  v.  McKinley,  9,  77. 
Van  Esse  v.  Catsburg  Co.  323. 
Van  Horn  v.  State,  192. 
Van    Zandt    v.    Argentine    Co.     (2 

McCrary,  159),  33,  43,  163,  333. 
Vervalen    v.    Older    (8   N.   J.    Eq. 

98).  236. 

Vietti  v.  Nesbit,  307,  343. 
Virginia  Co.  v.  Kelly,  218. 

Wakefield  v.  Sunday  Lake  Co.  267. 
Wakeman  v.  Norton,  137,  171. 
Walrath  v.  Champion  Co.  58,  145, 

161,  166,  173. 
Walsh  v.  Mueller,  30,  58. 
Ward  v.   Carp   River  Co.   236. 
Wardell  v.  Watson,  218. 
Warner  v.  Benjamin,  322. 
Warnock  v.  De  Witt,  51,  114. 
Waterloo  Co.  v.  Doe,  32,  43,  133. 
Waterman  v.  Banks,  252. 
Waters    v.     Stevenson     (13    Nev. 

157),  320. 

Watervale  Co.  v.  Leach,  141,  149. 
Watson  v.  Mayberry,  39. 
Watson  Co.  v.  James,  256. 
Weese  v.  Barker,  70,  79,  319. 
Weibold  v.  Davis,  339. 
Weill    v.    Lucerne    Co.     (11    Nev. 

200),  247. 

Welch  v.  Garrett,  87,  183. 
Wells  v.  Davis,  75. 

v.  Leek,  273. 

Welsh  v.  Lehigh  Co.  324. 
Wesling  v.  Kroll,  268. 
Western  Co.  v.  Berberich,  324. 
West  Granite  Co.   v.   Granite  Co. 

77. 

Westmoreland  Co.  v.  De  Witt,  267. 
West    Point    Co.    v.    Reymert    (45 

N.  Y.  70S),  328. 
Wheeler  v.  Smith,  193. 

v.  Walton  Co.  306. 


v.  West,  269. 


White  v.  Lee,  198. 
Whittaker  v.  Lindley,  249. 
Wight  v.  Dubois,  128. 
Wilhelm  v.  Silvester,  141. 
Wilkins  v.  Abell,  240. 
Willeford  v.  Bell,  33. 
Williams  v.  Gibson,  218. 

v.  Long,  330. 

v.  Morrison,  269. 

v.  Pomeroy  Co.  (37  Oh.  St. 

583),  340. 

Wills  v.  Blain,  112. 
Willson  v.  Cleaveland,  87. 
Wilson  v.  Gerhardt,  267. 

v.   Henry   (35  Wis.  2Jtl;  40 

Id.  59Jt),  339. 

v.  Iriumph  Co.  82/94. 

Wiltsee  v.  King,  39. 
Winchester  v.  Davis  Co.  306. 
Winters  v.  Hub  Co.  302. 
Wolcott  v.  Johns,  255. 
Wolfley    v.    Lebanon    M.     Co.     (4 

Colo.  112),  128,  147,  148. 
Wood  v.  Aspen  Co.  283. 
Woods  v.  Montevallo  Co.  340. 
Woodside  v.  Ciceroni,  269,  273. 
Woodward  v.  Mitchell,  265. 
Woodworth  v.  McLean,  273. 
Woody  v.  Barnard,  95. 
Worthington  v.  Given,  307. 
Wright  v.  Ascheim,  333. 
v.  Killian,  95. 

Yarwood  v.  Johnson,  116. 
Yellow  Aster  Co.  v.  Winchell,  440. 
York  v.  Davidson,  209. 
Yosemite  Case,  12,  13. 
Young  v.  Goldsteen,  439,  442. 
—  v.   Northern   Co.    (9  Biss. 

300),  236. 

Yreka  Co.  v.  Knight,  94,  318. 
Yunker   v.    Nichols    (1   Colo.   551), 

184. 

Zollars  v.  Evans   (2  McCrary,  39), 
32. 


GLOSSARY. 


GLOSSARY  OF  MINING  TERMS. 


ACEQUIA.     A  ditch.       gpaniish. 

ADIT.  A  horizontal  drift  or  other  passage  used  as  an 
opening  or  drain  to  a  mine  ;  applied  to  no  level  except  one 
opening  on  the  surface.  Latin. 

ADVENTURER.     A  shareholder. 

ALLUVIUM.     The  sediment  of  streams  and  floods.    Latin. 

AMALGAM.  The  mechanical  combination  of  quicksilver 
with  gold  or  silver. 

ANDESITE.  A  dark  porphyritic  lava,  composed  of  black 
crystals  imbedded  in  a  mass  of  light  colored  feldspar.  ANDE- 
SITE BRECCIA.  Fragmental  andesite  united  into  a  compact 
rock  by  silica  and  other  natural  cementing  materials.  The 
main  eruptive  rock  of  the  Cripple  Creek  district.  ANDESITE 
TUFF.  Andesite  in  minute  fragments,  finer  than  breccia. 
John  Wellington  Finch. 

APEX.     The  top  of  a  lode.     Latin. 

ARASTRA.  A  circular  mill  for  grinding  quartz  by  tritu- 
ration  between  stones  attached  loosely  to  cross  arms. 
Spanish. 

ARCH.     A  part  of  the  gangue  left  standing  for  support. 

ARGENTIFEROUS.     Silver   bearing.     Latin. 

ASCENSION  THEORY.  That  referring  the  filling  of  fis- 
sures to  matter  from  below.  Von  Gotta,  71. 

ASPHALT.  A  solid  form  of  native  bitumen,  which 
occurs  more  or  less  pure,  or  mixed  with  inorganic  or  other 
adventitious  non-bituminous  matter.  The  name  is  also  ap- 
plied, commercially  and  in  engineering  parlance,  to  mate- 
rials in  general  containing  this  form  of  native  bitumen  or 
any  form  resembling  it.  See  BITUMEN.  C.  O.  Baxter. 

ASSAY.  A  test  of  the  mineral  contained  in  a  larger 
mass  by  extracting  and  weighing  the  product  of  a  sample. 
See  p.  3Jfl. 

ASSESSMENT  WORK.  The  annual  labor  ($100)  required 
to  hold  a  claim.  See  p.  88. 

AURIFEROUS.     Gold  bearing.     Latin 

BACK.     The  roof  of  a  drift,  stope  or  other  working. 

BAL.     A  mine.     Cornish. 

BANK.     The   surface   at   the  pit's   mouth. 

BANKET.     Term  applied  to  the  ore  of  the  Rand  Reefs. 


GLOSSARY.  493 

BANKSMAN.  The  man  at  the  shaft-mouth  who  handles 
the  bucket.  Cornish. 

BAR  DIGGINGS.     Gold  washing  on  river  bars. 

BARRIERS.  Masses  of  unworked  gangue  or  coal  left  to 
prevent  drainage  from  mine  to  mine. 

BASE  BULLION.  Pig  lead  containing  its  gold  and  silver 
unseparated. 

BASE  METALS.     All  metals  except  gold,  silver,  mercury 
and  the  platinum  group,  which  are  termed  noble  metals. 
BED.     A  horizontal  seam  or  deposit  of  ore. 

BED  ROCK.  The  solid  rock  outcropping  at  surface  or 
underlying  the  gravel,  slide  or  other  loose  earth. 

BISMUTH.  A  brittle  crystalline  grayish  white  metal 
very  easily  fusible ;  specific  gravity,  9.8 ;  atomic  weight. 
208.5  ;  symbol,  Bi.  Found  as  an  oxide  or  sulphide  in  ores 
of  gold,  silver,  copper  and  other  metals.  Not  usually  dis- 
tinguishable except  by  assay.  As  distributed  with  such  ores, 
has  no  commercial  value  unless  of  high  percentage.  Frank 
M.  Taylor. 

BITUMEN  consists  of  a  mixture  of  native  hydrocarbons 
and  their  derivatives,  which  may  be  gaseous,  liquid,  a  viscous 
liquid  or  a  solid,  but.  if  a  solid,  melting  more  or  less  readily 
on  the  application  of  heat,  and  soluble  in  turpentine,  chloro- 
form, bisulphide  of  carbon,  similar  solvents  and  in  the 
malthas  or  heavy  nsphaltic  oils.  Natural  gas,  petroleum, 
maltha,  asphalt,  grahamite,  gilsonite,  ozokerite,  etc.,  are 
bitumens.  See  ASPHALT.  C.  O.  Baxter. 

BLACK  JACK.     A  dark  variety  of  zink  blende. 

BLENDE.     A  sulphide  of  zink. 

BLOSSOM.  Decomposed  out-crop  of  a  vein.  Gossan. 
Iron  hat. 

BLOW-OUT.     A  spreading  out-crop. 

BONANZA.  Pair  weather  at  sea  ;  a  large  body  of  paying 
ore.  Became  a  familiar  term  upon  the  opening  of  the 
immense  ore  bodies  in  the  Comstock.  Sp. 

BOOM  DITCH.  The  ditch  from  the  dam  used  in  boom- 
ing. (2)  A  slight  channel  cut  down  a  declivity  into  which 
is  let  a  sudden  head  of  water  intended  to  cut  to  bed-rock 
and  prospect  for  the  apex  of  any  underlying  lode. 

BOOMING.  A  kind  of  placer  mining  where  the  water 
is  accumulated  in  a  dam  and  let  out  at  intervals,  so  as  to 
utilize  its  cutting  power  in  the  form  of  a  torrent. 

BORRASCA.     The  reverse  of  Bonanza.     Out  of  pay. 

BOULDER.     A  large,  loose,  rounded  stone. 

BRATTIS.     A  bulkhead. 

BREAST.  The  heading  of  a  drift,  tunnel,  or  other  hori- 
zontal working. 

BRECCIA.     A  conglomerate  of  angular  fragments. 


494  GLOSSARY. 

BRITTLE  SILVER.  Stephanite.  A  sulphide  of  antimony 
and  silver  containing  68.5  per  cent,  silver  with  the  anti- 
mony variable.  Sometimes  contains  iron,  copper  and 
arsenic ;  variable  in  color,  hardness  and  specific  gravity. 
2?.  B.  Lawrence. 

BROACHING.     Trimming  or  straightening  a  working. 

BRONZE.  An  alloy  of  copper  and  tin.  Brass  is  an 
alloy  of  copper  and  zink. 

BUDDLING.     Separating  ores  by  washing. 

BULLION.     Uncoined  gold  or  silver. 

CACHE.  A  place  where  a  prospector's  provisions  or  out- 
fit is  buried  or  hidden.  French. 

CALAMINE.     An  ore  of  zink.     Lapis  Calaminaris. 

CALAVERITE.  A  telluride  of  gold,  containing  55.5  per 
cent,  tellurium  and  44.5  per  cent,  gold ;  allied  to  and  com- 
monly misdescribed  as  sylvanite ;  sometimes  distinguish- 
able from  the  latter  by  a  yellow  color  and  lack  of  crystalliza- 
tion. J.  W.  Finch. 

CANON.  A  narrow  valley.  Termed  Box  Canon  when  the 
sides  are  perpendicular.  Spanish. 

CAP.  Space  where  the  walls  contract  so  as  to  leave 
only  a  trace  of  the  vein.  A  pinch.  (2)  A  space  in  the 
vein  where  the  gangue  becomes  barren. 

CARBONATES.  The  combination  of  carbonic  acid  with 
bases.  Soft  carbonates  have  lead  for  a  base.  Hard  carbon- 
ates have  iron  for  a  base.  An  ore  of  lead  and  silver. 

CEMENT.  Gold-bearing  gravel  united  and  hardened  into 
a  compact  mass. 

CHAFFEE  WORK.  A  Colorado  term  for  annual  labor. 
Jerome  B.  Chaffee  was  Territorial  delegate  when  the  Mining 
Act  of  1872  was  passed. 

CHEEK.     The  side  or  wall  of  a  vein. 

CHIMNEY.  A  pocket  or  ore  body  when  found  pipe  shape, 
with  general  perpendicular  position. 

CHLORIDES.  Compounds  of  chlorine  with  other  ele- 
ments. 

CHUTE,  (or  SHOOT.)  A  flume  for  sliding  ore.  (2)  A 
chimney  of  ore.  French. 

CINNABAR.     Sulphide  of  mercury. 

CLAIM.  A  location.  The  amount  of  ground  which  may 
be  located  by  a  single  person  or  association.  See  /x  425. 

CLEAN-UP.  The  operation  of  collecting  the  gold  which 
has  settled  in  the  flume  of  a  placer  or  in  an  arastra. 

CLEAVAGE.  The  property  of  splitting  more  or  less  read- 
ily in  certain  definite  directions. 

COASTER.  One  who  picks  dump,  or  gleans  in  abandoned 
mines  for  ore  in  sight. 


GLOSSARY.  495 

COBBING.     Ore  sorting. 

COLLAR.  The  top  of  a  shaft  or  winze.  (2)  The  tim- 
bering of  a  shaft  when  carried  above  the  surrounding  sur- 
face. 

COLOR.     A  particle  of  gold  in  the  pan. 

CONCENTRATION.  The  removal  by  mechanical  means  of 
ore  from  the  gangue  or  slime. 

CONTACT.     The  plane  of  meeting  of  two  formations. 

CONTACT  VEIN.  A  vein  along  the  plane  of  contact  of 
two  dissimilar  formations,  consequently  separating  the  two 
formations.  Von  Gotta,  28. 

COPPER.  A  metallic  element ;  red ;  fusing  point  1996 
deg.  Fahr.  Symbol  Cu.  At.  wt.  63.6.  Sp.  gr.  8.9. 

COST-BOOK  COMPANY.  A  system  of  mining  partnership 
local  to  Cornwall  and  Devon. 

COUNTRY  ROCK.  The  rock  beyond  the  walls  of  a  lode. 
The  strata  between  or  across  which  the  lode  is  found. 

COURSE  OF  VEIN.  Its  strike.  The  horizontal  line  on 
which  it  cuts  the  country  rock. 

COYOTING.     Spasmodic,  irregular,  surface  mining. 

CRADLE.     A  rocker.     A  short  trough  for  washing  gold. 

CRIBBING.  The  timber  lining  of  a  drift,  shaft,  winze 
or  mill-hole.  The  term  also  is  applied  to  rough  or  light 
timbering  as  distinguished  from  solid  set  work. 

CROSS  COURSE.     An  intersecting  vein. 

CROSS  CUT.  A  level  driven  across  the  course  of  a  vein. 
A  short  tunnel. 

CUT.  To  intersect  a  vein.  OPEN  CUT.  A  horizontal 
opening  at  the  surface  not  reaching  cover. 

CYANIDE.  A  compound  of  cyanogen  with  a  metal.  .The 
Cyanide  Process  of  gold  extraction  is  performed  by  passing 
an  auriferous  solution  of  potassium  cyanide  over  zink  shav- 
ings, by  which  the  values  are  precipitated.  Henry  Lewis  on 
Gold  Mining.  Thomas  R.  Beaumont. 

DEAD  WORK.  The  developing  of  a  mine  preparatory  to 
stoping.  See  p.  257. 

DEBRIS.  The  loose  fragments  detached  from  the  bed 
rock  and  washed  down,  to  which  the  term  slide  is  more 
appropriate  ;  waste  rock  of  any  kind.  French. 

DEEP.     The  lower  portion  of  a  vein. 

DENOUNCEMENT.  The  Mexican  or  Spanish  equivalent 
to  "location  and  record"  of  a  claim. 

DESCENSION  THEORY.  The  theory  that  veins  were  filled 
from  above. 

DIGGINGS.     Placers.     Amer. 

DIKE.  A  fissure  made  and  filled  by  plutonic  action.  Its 
rock  is  most  commonly  porphyry.  It  is  often  barren,  but  in 


496  GLOSSARY. 

some  cases  mineralized  ;    or  may  carry  a  mineralized  selvage 
and  so  appear  as  the  wall  of  a  lode. 

DILUVIUM.  A  deposit  of  loose  boulders,  earth,  etc.,  at- 
tributed, geologically,  to  deposition  from  water. 

DIP.  The  line  of  declination  of  strata.  Bainbridge. 
Yale — The  angle  which  a  lode  makes  with  the  plane  of  the 
horizon.  Von  Cotta,  26.  The  departure  of  a  vein  from  the 
perpendicular  or  from  the  horizontal. 

DITCH.  An  artificial  water  course,  flume  or  canal,  with 
or  without  natural  channels. 

DIVINING  ROD..  A  stick  of  witch  hazel  or  other  like 
device  used  in  prospecting  for  lodes.  Laic  v.  Grant,  7 
M.  R.  57. 

DOLLAR.  From  the  German  Thaler.  One  hundred  cents. 
GOLD  23.22  grains  :  alloy  2.58  grains ;  weight  25.8  grains. 
Coined  1849-1889.  SILVER  371%  grains;  alloy  41%  grains:, 
weight  4121/2  grains.  Coined  1794-1804,  1836-1838,  1840- 
1873,  1878-1903.  Legal  tender  unlimited.  The  Mexican  dol- 
lar contains  377.17  grains  silver  and  40.62  grains  alloy. 
Spanish  dollar  the  same. 

DOWNCAST.  A  ventilating  shaft  with  descending  cur- 
rent of  air. 

DRIFT.  An  underground  passage  driven  horizontally  on. 
or  with,  the  vein. 

DUMP.  A  deposit,  or  place  of  deposit,  of  waste  rock  or 
tailings. 

ELVAN  COURSE.     A  plutonic  dike.     Lyell.    Argall.     Corn. 
EXPLOITATION.     The   active   working  of   a  mine  as   dis- 
tinguished from  prospecting. 

x  FACE.     Synonymous  with  breast. 

FATHOM.  A  space  6  feet  forward  and  6  feet  vertical 
with  the  width  of  the  vein.  Corn. 

FAULT.  A  dislocation  of  strata.  Bainbridge.  Yale. 
The  dislocation  of  a  vein  from  its  original  position  ;  a  heave  ; 
a  throw.  Von  Cotta,  29. 

FEEDER.  A  small  vein  starting  from  some  distant  point 
and  running  into  a  main  lode.  It  is  practically  synonymous 
with  spur.  See  Bainbridge  2. 

FELDSPAR.  A  vitreous  crystalline  constituent  of  gran- 
ite, gneiss,  porphyry  and  many  other  rocks. 

FISSURE  VEIN.  A  fissure  oi<  crack  in  the  earth  across 
its  strata,  filled  with  mineralized  matter. 

FLOAT.  Loose  quartz  detached  from  the  vein  and  found 
below  it. 

FLOAT  ORE.  Masses  or  particles  of  ore  detached  from 
the  vein  found  below  it.  .  Sec  Brown  v.  V/9  Co.  9  M.  R. 
wo. 


GLOSSARY.  497 

FLOOKAN.     A  soft  decomposed  cross-course.     Corn. 

FLOOR.  The  rock  underlying  a  horizontal  vein  or  de- 
posit. 

FLUME.  A  ditch  carried  in  frame  work  on  or  above  the 
surface. 

FOOT  WALL.     The  under  wall  of  the  vein. 

FORFEITURE.  The  loss  of  possessory  title  as  the  result 
of  abandonment  or  failure  to  comply  with  the  conditions 
under  which  the  title  was  held. 

GAD.     A  small  pointed  wedge. 

GALENA.  A  sulphide  of  lead ;  when  not  amorphous,  is 
crystallized  on  the  cubic  system  ;  when  pure  contains  86.6 
per  cent,  lead,  13.4  per  cent,  sulphur.  Carries  silver  in 
greatly  varying  quantities. 

GALLERY.     A  level  or  drift ;    applied  chiefly  to  collieries. 

GANGUE.  Crevice  material ;  vein  matter ;  the  base 
material  forming  the  matrix  of  the  ore. 

GASH  VEIN.  A  vein  which  continues  for  practical  pur- 
poses only  a  short  distance  below  the  sod,  generally  narrow- 
ing as  it  descends. 

GEODE.  A  rounded  nodule  of  stone  containing  a  cavity 
studded  with  crystals  or  mineral  matter  ;  the  cavity  in  such 
nodule. 

GNEISS.  A  rock  composed  of  the  same  constituents  as 
granite,  but  foliated  or  stratified. 

GOB  FIRE.  Fire  in  collieries  produced  by  spontaneous 
combustion. 

GOLD.  A  metallic  element ;  bright  yellow  ;  Sp.  gr.  19.34  ; 
fusing  point  2016  degrees  Fahr.  Almost  invariably  found 
native  associated  with  a  variable  percentage  of  silver.  Sym- 
bol Au.  At.  wt.  197.2.  One  ounce  pure  gold  coined  in  U.  S. 
dollars  is  worth  $20.67. 

GOSSAN.     See  Iron  Hat. 

GOUGE.  A  soft  selvage ;  a  clay  streak  found  following 
a  wall,  or  a  slip  or  an  ore  measure. 

GRANITE.  A  plutonic  crystalline  rock  composed  of 
feldspar,  quartz  and  mica. 

GRASS.     The  surface  over  a  mine.     Corn. 

GRASS  ROOTS.  A  term  used  where  a  working  is  started 
from,  or  worked  up  to,  the  surface.  Amer. 

GRAY  COPPER.  Tetrahedrite.  An  ore  containing  cop- 
per 15  to  42  per  cent.,  combined  with  iron,  zink,  silver,  mer- 
cury, arsenic  and  antimony.  It  varies  in  color,  hardness 
and  specific  gravity. 

GRUB  STAKE.  Provisioning  a  prospector  on  a  bargain 
to  share  his  discoveries. 


498  GLOSSARY. 

HANGING  WALL.     The  upper  wall  of  a  vein. 
HEADING.     The  breast  or  face  of  a  working. 
HEADINGS.     The  mass  of  gravel  and  pay  dirt  above  the 
head  of  a  sluice. 

HEAVE.  The  horizontal  dislocation  of  one  lode  by  an- 
other. 

HIGH  EXPLOSIVES.  Those  of  greater  detonating  force 
than  black  powder. 

HORSE.  A  mass  of  country  rock  between  the  enclosing 
walls  of  a  vein.  To  constitute  a  Horse,  "It  is  necessary  that 
the  walls  should  converge  about  the  mass  below  and  at  both 
ends,  but  the  greatest  known  horses  do  not  converge  over 
head.  The  two  walls  coming  to  the  surface  are  in  some  in- 
stances 1,000  feet  apart."  Testimony  of  Clarence  King  in 
the  Dives  Case. 

HUDGE.     An   iron   bucket   for   hoisting. 

HUNGRY.     Barren. 

HYDRAULICS.  That  method  of  placer  mining  where  the 
gravel  is  washed  by  a  stream  operating  under  hydraulic 
pressure. 

I.  D.  B.     Illicit  Diamond  Buyer.     Africa. 

IMPREGNATION.  A  metallic  deposit  having  undeter- 
mined limits  in  no  way  sharply  defined.  Von  Gotta,  87. 

INCLINE  DRIFT.  A  drift  run  at  an  incline  to  subserve 
the  drainage.  (2)  A  misnomer  applied  to  a  slope  sunk 
upon  a  deposit  having  slight  departure  from  the  horizontal. 

INFILTRATION  THEORY.  That  which  refers  the  origin  of 
the  ore  to  the  deposit  of  mineral  from  water  holding  it  in 
solution. 

INJECTION  THEORY.  That  which  refers  the  origin  of  the 
ore  to  the  introduction  of  igneous  fluid. 

IN  PLACE.  In  Situ.  Words  used  in  Section  2329  of  the 
U.  S.  Revised  Statutes,  qualifying  the  words  "quartz  or  other 
rock,"  and  to  distinguish  lode  from  placer  claims.  See  p.  151. 

IRON  HAT.  (Eisen  Hut.)  The  outcrop  of  a  lode,  it 
being  usually  colored  by  the  decomposition  of  the  iron.  Yon 
Cotta,  38. 

JIG.  A  machine  for  concentrating  ore  by  means  of 
sieves.  Corn. 

JUMP.  To  take  forcible  possession  of  a  claim.  (2)  To 
relocate  abandoned  property. 

KIBBLE.     A  kind  of  hoisting  bucket.     Corn. 

LAGGING.  Poles  or  small  timbers  used  for  spanning 
from  one  stull-piece  to  another,  for  cribbing  mill-holes  and 
for  lining  behind  the  timbers  of  a  shaft. 

LEAD.     An  objectionable  form  of  the  word  lode. 


GLOSSARY.  499 

LEAD.  A  metallic  element,  bluish  white  ;  fusing  point 
617  deg.  Fahr.  Symbol  Pb.  At.  wt.  206.9.  Sp.  gr.  11.30. 
Galena  and  carbonates  are  its  most  common  ores. 

LEDGE.  A  term  in  use  on  the  Pacific  slope  synonymous 
with  lode.  See  p.  150. 

LENGTH.  A  certain  portion  of  a  vein  when  taken  on  a 
horizontal  line  on  its  course. 

LEVEL.  A  drift  along  the  vein ;  the  word  generally 
used  where  there  are  a  series  of  drifts,  as  first  level,  second 
level,  etc.  See  Cambers  v.  Lowry,  5£  Pac.  816. 

LIFT.     The  space  between  two  levels. 

LITTLE  GIANT.  A  jointed  iron  pipe  and  nozzle  decreas- 
ing in  diameter  with  the  increase  of  the  hydraulic  pressure  ; 
used  in  placer  mining. 

LOCATION.  Those  successive  acts  by  which  a  claim  is 
appropriated.  (2)  The  claim  itself. 

LODE.  An  aggregation  of  mineral  matter  containing 
ores  in  fissures.  Von  Gotta  26.  A  vein  of  metallic  ore.  A 
ledge.  Corn.  See  p.  150.  (A  fault  in  the  country  which 
has  became  mineralized.  A.  H.  Green.) 

MAN  HOLE.  An  opening  just  large  enough  to  permit 
access  between  two  workings. 

MATEIX.  (Of  the  lode.)  The  country  rock  in  which 
the  vein  is  found.  (Of  the  ore.)  The  rock  or  earthy  mate- 
rial inclosing  the  ore ;  the  vein-stone.  Latin. 

MATTE.  One  of  the  products  of  matte  or  pyritic  smelt- 
ing. It  consists  either  of  ferrous  mono-sulphide  (PeS),  or 
of  cuprous  sulphide  (Cu2S),  with  ferrous  mono-sulphide  in 
varying  proportions.  Franklin  R.  Carpenter,  Ph.  D.  See 
Smelting. 

MERCURY.  Quicksilver.  A  shining  silver-white  metal, 
liquid  at  temperature  above  — 40  deg.  Fahr.  Sp.  gr.  13.5. 
At.  wt.  200.  Boils  at  669  deg.  Fahr.  Symbol  Hg. 

METALLURGY.  The  art  of  working  metals,  including 
smelting,  refining,  and  parting  them  from  the  ores. 

MICA.  One  of  the  constituents  of  granite.  When  sep- 
arately crystallized  is  found  in  clear  laminated  plates. 
Found  in  the  lode  as  well  as  in  the  matrix  of  the  lode. 

MILL-HOLE.  A  passage  left  in  the  stope  for  throwing 
down  rock  and  ore. 

MILL-RUN.  The  returns  of  a  lot  of  ore ;  the  assay  of 
ore  in  quantity  as  distinguished  from  a  specimen  assay. 

MINE.  Any  excavation  made  for  mineral.  (2)  An 
open  as  distinguished  from  an  untouched  deposit.  (3) 
Underground  as  distinguished  from  superficial  workings  or 
quarries. 

MINER'S  INCH.  There  is  an  attempted  statutory  defini- 
tion in  Colorado  M.  A.  S.,  Sec.  4643,  which  is  obscure  and 
inexact.  See  also  2467.  Orifices  constructed  as  this  statute 


:>n>  GLOSSARY. 

directs,  will  deliver  through  each  square  inch  of  opening,  a 
quantity  which  varies  from  1.4  to  1.7  cubic  feet  of  water  per 
minute.  The  custom  among  engineers  is  to  take  1.6  cubic 
feet  of  water  per  minute  as  the  equivalent  of  an  inch. 

"A  miner's  inch  is  the  quantity  of  water  which  will 
escape  from  a  reservoir  through  an  aperture  in  its  side  1 
inch  square,  whose  center  is  6  inches  below  the  constant 
level  of  the  water  and  is  equivalent  to  1.626  cubic  feet  per 
minute.  *  *  *  The  most  common  illustration  of  the 
miner's  inch  is  a  hole  1  inch  square  through  an  inch  board." 
Van  Wagenen,  Manual  Hydraulic  Mining,  p.  17. 

MINER'S  RIGHT.  The  license  to  locate,  used  in  Aus- 
tralia. 

MOLYBDENITE.  A  sulphide  of  the  metal,  Molybdenum  ; 
found  in  scales  with  metallic  luster  closely  resembling  tin 
foil  or  gray  copper  ;  also  in  a  granular  form,  showing  steel 
blue  flake  crystals.  Valuable  and  marketable  when  concen- 
trated, as  an  alloy  for  high  grade  steel.  A.  B.  Frenzel. 

MOYLE.  A  drill  or  short  bar  sharpened  to  a  point,  used 
in  cutting  hitches  and  in  broaching. 

MUCKER.     The  man  who  fills  the  bucket  or  tnv*n. 

NODULE.     A  small,   rounded,   stony  concretion. 

OPEN  CUT.  A  longitudinal  surface  working  not  enter- 
ing cover. 

OPERATOR.  One  who  works  a  mine  either  as  owner  or 
lessee. 

ORE.  The  mechanical  or  chemical  compounds  of  the 
metals  with  baser  substances.  The  conventional  divisions 
in  the  ore  market  are :  DRY  ORE  :  An  ore  which  does  not 
contain  any  lead,  or  less  than  5  per  cent.  MILLING  ORE  :  A 
dry  ore  that  can  be  amalgamated  or  treated  by  leaching  and 
other  processes  ;  usually  these  ores  are  low  grades,  free,  or 
nearly  so,  from  base  metals.  SHIPPING  ORE  :  Such  as  is 
better  adapted  to  smelting  than  any  local  treatment.  Any 
ore  of  greater  value  when  broken  than  the  cost  of  freight 
and  treatment.  REFRACTORY  ORE  :  An  ore  containing  in 
quantities,  zink,  arsenic,  antimony  or  other  base  metals, 
which  prevent  economical  treatment  by  usual  and  available 
processes.  W.  J.  Chamberlain. 

ORE  RESERVES.  The  ore  body  where  exposed  ready  for 
stoping. 

OUTCROP.  That  portion  of  a  vein  appearing  at  the  sur- 
face. 

OUTPUT.     The  gross  product  of  a  mine. 

PAN.     An  iron  basin  used  in  gold  prospecting. 
PATCH.     A  small  placer  claim  outside  of  the  main  gulch. 
PATIO.     A    yard    or    court.      The    space    where    ore    is 
mixed  and  amalgamated  by  tread  of  horses.       Sp. 


GLOSSARY.  501 

PATIO  PIIOCESS.  The  Mexican  method  of  amalgamation 
of  silver  ores. 

PAY  ROCK.  The  lode  material  in  which  the  mineral  or 
pay  is  found.  See  Quartz. 

PAY  STREAK.  The  ore  body  proper,  or  the  seam  of  de- 
composed material  which  takes  its  place  and  preserves  the 
continuity  of  the  ore  body. 

PENT  HOUSE.  A  shed  or  horizontal  barricade  across 
one  end  of  a  shaft,  made  of  strong  timbers  loaded  with  rock 
to  protect  against  any  accidental  fall  from  above.  Corn. 

PHONOLITE.  A  volcanic  rock  of  porphyritic  texture ; 
the  crystals  in  some  cases  so  minute  as  to  be  imperceptible 
unless  magnified  ;  thin  slabs  ring  when  struck,  whence  the 
name,  literally,  sounding  stone. 

PINCH.  A  narrow  space  where  the  walls  come  close 
together. 

PIT.     A  shallow  shaft. 

PITCH.     The  dip  of  a  lode. 

PLACER.  A  deposit  of  gold  not  in  place.  Applied  to  all 
classes  of  gold  deposit,  including  cement  and  channel  claims, 
except  lodes  in  place.  For  special  meaning  under  Section 
2329  TJ.  S.  Rev.  St.  see  p.  192. 

PLAT.  A  small  chamber  on  the  side  or  sole  of  a  level 
where  it  intersects  a  shaft,  made  to  facilitate  dumping. 
Where  it  is  cut  in  the  sole  it  is  called  a  trip-plat.  Corn. 

POCKET.     A  detached  ore  body  ;  a  nest  of  ore. 

POCKETY.  A  term  applied  to  a  mine  where  the  pay  ore 
occurs  in  small  detached  bodies  with  intervals  of  poor  ore 
or  barren  material.  The  word  implies  a  slur  on  the  mine. 
Paull  v.  Halferty,  9  M.  R.  149. 

PORPHYRITIC  GRANITE.  A  base  of  granite  containing 
prominent  crystals  of  feldspar. 

PORPHYRY.  A  general  term  including  such  plutonic 
rocks  as  exhibit  well  formed  crystals,  usually  of  feldspar,  in 
a  finely  granular  or  compact  base  of  the  same.  Or. 

PROSPECTING.  A  search  for  deposits  ;  applied  both  to 
the  seeking  for  undiscovered  veins  and  to  the  investigation 
of  the  value  of  known  veins  by  exploration. 

PYRITES.  (White.)  A  sulphide  of  iron.  (Yellow.)  A 
sulphide  of  copper.  Bright  crystallized  metallic  looking  and 
very  common  gold  bearing  ores  usually  low  grade  and  spoken 
of  in  common  parlance  as  the  "Iron."  Or. 

QUARRY.  Any  open  work  in  rock  on  a  plan  of  excavat- 
ing the  entire  mass,  as  distinguished  from  working  a  seam 
or  vein  by  shafts  or  approaches  under  cover. 

QUARTZ.  Silica.  A  constitutent  of  granite.  The  free 
gold  of  California  being  found  in  quartz,  the  word  was  ap- 
plied to  the  gangue  of  such  lodes  and  so  to  other  forms  of 


502  GLOSSARY. 

vein  matter,  until  it  is  now  used  vaguely  to  mean  the  ore, 
the  float,  the  gangue,  or  that  part  of  the  gangue  which  in- 
dicates the  pay  streak.  In  the  Acts  of  Congress  it  is  used 
with  the  word  rock  (quartz  or  other  rock)  in  the  sense  of 
pay  rock. 

QUARTZITE.  A  metamorphosed  sandstone ;  a  rock  con 
taining  usually  about  98  per  cent,  silica  with  a  small  per- 
centage of  foreign  materials,  principally  iron. 

QUICKS ILVEE.     See  Mercury. 

RAISE.  A  shaft  or  winze  which  has  been  worked  from 
below. 

RAND.     Range  of  hills.     Dutch. 

REEF.     An  Australian  term  for  lode  or  ledge. 

REGULUS.     The  Alchemic  term  for  "matte." 

RHYOLITE.  A  name  common  to  igneous  rocks  of  a  wavy 
texture  indicative  of  movement  or  flowing  when  in  a  fluid 
state. 

RIFFLE  BLOCKS.  Cross  sections  of  timber  set  on  the 
floor  of  a  sluice,  with  irregular  spaces  between,  in  which  the 
gold  settles.  American. 

ROB.  To  gut  a  mine ;  to  work  for  the  ore  in  sight  with- 
out regard  to  supports,  reserves  or  any  future  considerations. 

ROCKER.     See   Cradle. 

ROOF.  The  stratum  or  rock  overlying  a  deposit,  or  flat 
vein.  The  top  or  back  of  any  working. 

ROYALTY.     The  dues  to  the  lessor. 

RUSTY.  Oxidized.  Ore  coated  with  oxide.  Applies  to 
gold  wrhich  will  not  easily  amalgamate. 

SCALE.  A  loosened  fragment  of  rock  threatening  to 
break  off  and  fall. 

SCHIST.  Crystalline  or  metamorphic  rock  with  slaty 
structure  ;  usually  carrying  mica,  sometimes  argillaceous. 

SEGREGATIONS.  All  those  aggregations  of  ore  having 
irregular  form  but  definite  limits.  They  differ  from  beds 
and  lodes  by  the  irregularity  of  their  form  ;  from  impregna- 
tions by  their  definite  limits.  Von  Gotta,  81. 

SELVAGE.  A  lining ;  a  gouge ;  a  thin  band  of  clay  often 
found  in  the  vein,  upon  the  wall. 

SET.     Portion  of  ground  taken  by  a  tributer. 

SHAFT.  A  pit  sunk  from  the  surface ;  an  opening  more 
or  less  perpendicular  sunk  on,  or  sunk  to  reach,  the  vein. 

SHIFT.  (1)  A  miner's  turn  or  spell  of  work.  Web- 
ster. Two  shifts  is  the  equivalent  of  16  to  20  hours  work, 
three  shifts,  24  hours  work,  of  one  man.  (2)  All  the 
miners  who  go  on  and  off  at  the  same  hour  are  known  as 
one  shift.  In  large  mines  there  are  usually  three,  styled 
the  day,  night  and  graveyard  shifts.  Ben).  C.  Catren,  Jr. 


GLOSSARY.  503 

SILICA.  In  chemistry  it  means  Silicon  dioxide.  Form- 
ula, Si.O-2.  1*  is  ordinary  quartz.  Between  ore  buyers  and 
sellers  everything  not  soluble  in  nitric  and  hydrochloric 
acids  is  counted  as  "silica" — a  determination  often  mani- 
festly unjust  to  the  seller.  FranJclin  R.  Carpenter,  Ph.  D. 

SILVER.  A  metallic  element ;  the  whitest  of  the  metals  ; 
Sp.  gr.  10.53  ;  fusing  point  1873  degrees  ;  symbol  Ag ;  At.  wt. 
107.93.  One  oz.  pure  silver  coined  in  IT.  S.  dollars  is  worth 
$1.2929,  gold. 

SILVER  GLANCE.  An  ore ;  when  pure  contains  87  per 
cent,  silver  and  13  per  cent,  sulphur. 

SKIP.  A  square  hoisting  bucket  running  on  guides,  or 
in  grooves. 

SLICKENSIDES.  Smooth,  polished  portions  of  the  wall 
or  of  some  vertical  plane  in  the  lode,  caused  by  friction.  It 
may  occur  on  the  ore  itself.  German. 

SLIDE.  (1)  One  kind  of  fault — the  vertical  disloca- 
tion of  a  lode.  (2)  The  mass  of  loose  rock  overlying  either 
lode  or  country. 

SLOPE.  An  opening  driven  upon  the  inclination  of  the 
vein. 

SLUICE.  A  series  of  boxes  set  in  line  and  floored  with 
riffle  blocks  to  catch  the  gold  in  a  placer  mine. 

SMELTING.  The  reduction  of  metals  from  their  ores  in 
furnaces.  It  is  a  form  of  the  word  melt.  In  smelting  the 
ore  is  melted.  In  other  processes  it  is  roasted.  MATTE 
SMELTING.  A  process  of  smelting  where  the  values  in  the 
ores  are  collected  in  an  iron  and  copper  sulphide  (regulus) 
technically  called  "matte."  When  iron  and  copper  pyrites 
are  added  to  the  charge  for  their  fuel  value  as  well  as  their 
matte-forming  properties,  the  process  is  called  "pyritic 
smelting."  FranJclin  R.  Carpenter,  Ph.  D. 

SOLE.     The  floor  of  a  horizontal  working. 

SOLLAR.  Any  platform  or  wooden  floor  or  covering  in 
a  working.  Corn. 

SOUGH.     A  drain.     Eng. 

SPAR.  A  'general  term  applied  to  rock  with  distinct 
cleavage  and  luster. 

SPILING.  Timbering  used  in  quicksand  or  loose  ground 
where  lathes  are  driven  behind  timbers  and  kept  flush  with 
the  heading. 

SPUR.     A  branch  or  off-shoot  from  a  larger  vein. 
STAMPS.     Machine  for  crushing  ores  by  vertical  stroke. 
STOPE.     The  working  above  or  below  a  level  where  the 
mass  of  the  ore  body  is  broken.     Corn. 

.  STOPING.  The  act  of  breaking  the  ore  above  or  below 
a  level ;  when  done  from  the  back  of  the  drift  it  is  called 
overhand  or  back  stoping ;  when  from  the  sole  it  is  under- 
hand stoping. 


504  GLOSSARY. 

STRATUM.  A  bed  of  rock  or  earth  of  any  kind.  Dana. 
The  plural  is  strata. 

STRIKE.  The  extension  of  a  lode  or  deposit  on  a  hori- 
zontal line.  Von  Cotta  19.  Synonymous  with  trend  and 
course. 

STULLS.     Cross  timbers  at  the  foot  of  a  stope. 

.SUBLIMATION  THEORY.  That  which  refers  the  filling  of 
fissures  to  material  deposited  from  ascending  steam,  or  by 
condensation  from  a  gaseous  condition. 

SULPHIDE.    The  chemical  union  of  sulphur  with  a  metal. 

SULPHUR.  A  non-metallic  element.  Sp.  gr.  205.  Sym- 
bol 8.  At.  wt.  32.06.  Yellow,  fusible,  brittle,  insoluble ; 
except  Oxygen,  the  most  common  base  combining  ele- 
ment in  metallic  ores,  such  as  Pyrites.  As  a  com- 
mercial product  most  commonly  mined  from  old  volcanic 
craters.  Greatest  production,  Sicily.  Largest  deposits  in 
U.  S.,  Louisiana  ;  Black  Rock,  Utah  :  Mineral  county,  Colo- 
rado. T.  8.  Todd,  Importer,  25  Broad  street,  N.  Y. 

SULPHURET.  A  sulphide.  Sulphide  is  the  more  recent 
and  approved  term. 

SUMP.  The  extension  of  a  shaft,  forming  a  pit  for 
the  collection  of  water.  Corn. 

SYLVANITE.  A  gold-silver-tellurium  combination.  Pure 
steel  gray  to  silver  white,  inclining  to  pale  yellow.  Gold 
24.5 ;  silver  13.4 ;  tellurium  62.1.  Usually  in  fine  grains 
or  crystals.  A.  B.  Frenzel. 

SYNDICATE.  An  association  or  council  of  persons ;  in 
use  since  the  civil  war  to  designate  any  combination  formed 
to  carry  out  a  large  financial  enterprise. 

TACKLE.     The  windlass,  rope  and  bucket.     Corn. 

TAILINGS.  The  refuse  discharged  from  the  tail  or  lower 
end  of  a  sluice,  or  washed  from  any  sort  of  placer  working. 

TELLURIUM.  A  silver  white,  brittle  substance,  generally 
classed  among  metals ;  usually  combined  with  gold,  silver, 
lead  and  copper.  Sp.  gr.  6.65.  At.  wt.  127.6.  Symbol  Te. 

TIN.  A  soft,  malleable,  white  metal.  Sp.  gr.  7.2.  Fus- 
ing point  442  deg.  Fahr.  At.  wt.  119.  Symbol  8n. 

TRIBUTERS.  'Miners  who  work  a  set,  or  piece  of  ground, 
taking  the  proceeds  as  wages,  after  royalty  deducted,  but 
who  work  under  direction  of  the  owners  and  hold  no  pos- 
session or  title  as  lessees. 

TROUBLE.     A  fault. 

TUNDRA.  The  moss,  or  scrub-covered,  regions  of  the 
Arctic. 

TUNGSTEN.  (Wolfram.)  A  hard,  heavy,  grayish  white 
metal,  that  fuses  with  great  difficulty.  Sp.  gr.  17.6.  At.  wt. 
184.  Its  ores  are  Scheelite,  Huebnerite  and  Wolframite,  all 
of  heavy  specific  gravity.  Wolframite  is  similar  to  iron  in 


GLOSSARY.  505 

appearance,  but  when  scratched  shows  reddish  brown.  Hueb- 
nerite  shows  reddish  brown,  straight  and  fan-shaped  crys- 
tals. Matrix  of  both,  usually  white  quartz  or  buff-colored 
quartzite.  A.  B.  Frensel. 

TUNNEL.  A  horizontal  excavation  starting  at  the  sur- 
face and  driven  across  the  country  for  discovery  or  working 
purposes. 

.  TUT  WORK.     Work  paid  for  by  the  foot  as  distinguished 
from  tribute  work. 

UPCAST.     A  ventilating  shaft  where  the  air  ascends. 

URANIUM.  A  metallic  element  usually  found  as  an 
oxide  UaOs.  Bright  lemon  yellow.  Frequently  associated 
with  Vanadium  and  then  called  Carnotite,  UgOg,  VjOs. 
Pitch  Blende  is  a  black  oxide  of  Uranium,  of  heavy  specific 
gravity,  without  luster.  A.  B.  Frensel. 

VANADIUM.  Found  as  oxide  VgOs.  Frequently  asso- 
ciated witft  Uranium  as  "Carnotite."  Largest  known  de- 
posit is  in  a  bed  of  Jurassic  Sandstone,  San  Miguel  county, 
Colorado,  carrying  about  three  per  cent.  Its  presence  gives 
dark  green  shade  to  the  rock.  Valuable  as  an  alloy  to 
harden  steel.  A.  B.  Frenzel. 

VEINS.  Aggregations  of  mineral  matter  in  fissures  of 
rocks.  Von  Gotta  26;  Bainbriclge  2.  The  word  vein  has  a 
broader  scope  than  lode,  including  non-metallic  beds.  See 
p.  150.  It  is  also  applied,  in  working,  to  smaller  seams 
threading  the  greater  deposit.  Sec  Vend  and  Veto. 

VENA.  A  small  vein  or  the  branches  of  the  veta,  or 
main  vein.  Span. 

VETA.     A  main  vein.     Span. 

VUG.     A  cavity  in  the  ore*  or  rock. 

WALL.  The  plane  of  the  country  where  it  touches  the 
side  of  the  vein,  when  used  in  reference  to  lodes.  The  side 
of  a  level  or  drift,  when  used  with  reference  to  the  workings. 
See  p.  17$. 

WHEAL.  A  pit  or  hole  in  the  ground.  A  mine.  The 
names  of  most  mines  in  Cornwall  are  preceded  by  the  word 
Wheat.  Old  form  Huel.  Corn. 

WHIM.  A  machine  for  raising  the  bucket  by  means  of 
a  revolving  drum. 

WHIP.  An  apparatus  for  raising  the  bucket  with  rope 
and  pulleys,  by  horse  power  on  a  straight  drive. 

WINZE.  A  shaft  sunk  from  a  level ;  not  necessarily  con- 
necting two  levels. 

ZINK.  A  metallic  element :  bluish  white  ;  fusing  point 
773  deg  Fahr.  ;  generally  found  as  a  sulphide  (blende)  or 
as  a  carbonate  (calamine).  At.  wt.  65.4.  Sp.  gr.  8.9.  Sym- 
bol Zn. 


506  INDEX. 


INDEX. 


Abandonment,   Page  84. 

Of   Possessory   Claim,   13. 

Of  Ditch,  183. 

Conditional,  86. 

Relocation  .after,  112. 

Of  Tunnel,  232. 

Pleading,  8.7,  102. 
Abstract  of  Title— 

In  Examining  Title,  274. 

On  Application  for  Patent,  398 

On  Adverse  Claim,  434. 
Accidents,  322. 
Acknowledgment,  249. 

By  Individual,  242. 

By  Wife,  248. 

By  Corporation,  249,  303. 

By  Attorney  in  Fact,  250. 

To  Contracts,  255. 

To  Articles  of  Incorporation,  289. 
Acreage — 

Of  Lode  Claim,  411. 

Of  Placer,  202. 

Government  Price,  411. 
Adverse  Claim,  431.     See  Forms.    Ejectment. 

By  Known  Lode,   205. 

By  Mill  Site,  217. 

By  Tunnel  Site,  232. 

By  Aliens,  281. 

Ejectment,  Supporting,  314. 

By  Whom  Verified,  435. 

By  Co-owner,  436. 

Amendment  of,   438. 

What  Should  Adverse,  439. 

Proceedings  After  Determination,  450. 


INDEX.  507 


Adverse  Claim — Continued. 

Annual  Labor  Pending,  451. 

Statute  Concerning,  §2326,  467. 

Land  Office  Rules,  361. 

Form  of,  432. 

Complaint  Supporting,  443. 

Answer  in,  445. 

Certificate  of  Suit,  441. 

Effect  of  Failure  to  Assert,  128,  130. 

Waiver  of,  448. 
Affidavit—- 
Of Annual  Labor,  104. 

Of  Citizenship,  399. 

In  Land  District,  412. 

By  Agent,  413,  435. 
Agent — 

Location  by,  57. 

Lease  by,  266. 

Adverse  by,  435. 

Of  Foreign  Corporations,  302. 

To  Procure  Patent,  412. 
Agricultural   Lands,  220,  225,  472,  473. 
Alaska,  456,  474. 

District  Rules,  8. 

Location  of  Claim  in,  60,  201. 

Tide  Lands  in,   458. 

Timber  in,  478. 

Act  of  1900,  457. 
Aliens,   281. 
Amendment — 

Of  Location  or  Record,  121,  165. 
Angles,  49,  176. 
Annual  Labor,  88. 

On  Group  Claims,  94. 

Proof  of,  103. 

By  Tunnel,  233. 

On  Old  Lodes,  89. 

Equity  of  the  Law  Requiring,,  101. 

On  Placers,  106. 


508  INDEX. 

* 
Annual    Labor — Continued. 

Pending  Patent,  92,  451. 

After  Entry,  92. 

Certificate  in  Lieu  of,  105. 

Time  to   Perform,  92. 

District  Rules,  7,  89,  95. 

Pending  Adverse,   451. 

Pleading,  87,  102. 

Soldiers'  Claims,  16. 

Roads  and  Trails  as,  187. 
Apex,  156. 

Stakes  Must  Cover,  49. 

Survey  Presumed  to  Include,  137. 

No  Apex,  No  Dip,  173. 

Conveyance  of  Fraction  of,  246. 

Statute,  Section  2322,  463. 

Application  for  Patent,  382.      See  Forms. 

Land  Office  Rules,  351. 

•Surveys  for,  369. 

Circular  to  Applicants.   378. 

Adjoining  Claims,  395. 

By  Agent,  412. 

By  Corporation,  414. 

On  Surveyed  Lands,  422. 

For  Mill  Site,  414. 

Proof  of  Nonabandonment,   401. 

Cancellation   of   Entry,   407. 

By  Trustee,  428. 

Without  Record  Title,  429. 

Conflicting,   131,    429. 

Statute,  466. 
Appropriation,  28,  29. 

Of  Water,  180. 

Arizona,  Location  of  Claim  in,  61,  198 
Assay,  341. 
Association  of  Persons,  17,  195. 

Attorney  in  Fact — 

Acknowledgment  by,  250. 
Power  to  Apply  for  Patent,  413. 


INDEX.  509 

Boundaries — 

Staking,  46. 

Surveys  of   Mining  Claims,   369. 

Monuments  Control,  56. 

Immaterial  Calls,  75. 

Building  Stone,  191,  193. 
Bureau  of  Mines,  340. 
By-Laws,  291. 

California,  Location  of  Claims  in,  61,  201. 
Children,  Employment  of,  313. 
Citizenship — 

Land  Office  Rules,  359. 

Form  of  Proof,  399. 

Statute,  463. 

Of  Corporation,   359,   401. 

Pleading  and  Proof  of,  283. 

Proof  by  Witnesses,  401. 

Claim.      See  Possessory   Claim,   Lode. 

Acreage  of  Lode,   411. 

Acreage  of  Placer,  202. 

Length,  17-21. 

Width,  21-25. 

Side   Claims,   17. 

Divided  into  Lodes  and  Placers,  192. 

Possessory,  12-14. 

Right  to  Swing,  38,  121. 

Fractions,  58. 
Coal   Lands,  475. 
Coal  Mines — 

Drainage,  178. 

Penal  Regulations  of,  313. 

Colorado,  Location  of  Claim  in,  25,  59,  191. 
Commissioner  of    Mines,   340. 
Condemnation,  185,  188. 
Contract — 

Mining   Sale,  250,  256. 

To  Sell  and  Buy,  254. 


510  INDEX. 

Contract — Continued. 

Prospecting,  270. 
To  Sink  Shaft,  273. 

Conveyance,  241. 

Before  Record,  124. 
Of  Water  Rights,  183. 
Agreements  for,  250. 
In  Examining  Title,  275. 
Form  of  Warranty,  241. 
Form  of  Quit  Claim,  243. 
Subdividing  Lode,  246. 
Acknowledgment,  249,  250,  255. 
Escrow,  255. 
Mining  Deed,  244. 
Witnesses,  248. 
Short  Form  Deed,  245. 
Wife's  Signature,  248,  276. 

Corporation,  286. 

Location  by,  57. 

Foreign,  302. 

Citizenship  of,  359,  401. 

Filing  Fees,  298. 

Form  of  Articles,  288,  290,  297. 

First  Meeting,  291. 

By-Laws,  291. 

Reports,  294. 

Smelting  and  Sampling  Companies,  298. 

Ditch  Company,  297. 

License  Tax,  299. 

Acknowledgments   by,   249. 

Application  for  Patent  by,  414. 

Costs,  444. 
Crevice,  42. 
Crimes,  310. 
Cross  Lodes,  138. 

In  Conveyance,  247. 
Courses,  39,  54,  56. 
Custom,  see  District  Rules. 


INDEX.  511 


Damages — 

In  Trespass,  320. 

For  Negligence,   322. 

Measure   of,   320. 

For  Dumping,  209. 

On  Condemning  Ditch,  185. 

Dead  Work,  257. 

Deed.     See  Conveyance. 

Departure  from  Side  Lines,  146,  161,  162. 

Deposits — 

In  Place,  151,  155. 

Richness  of,  152. 

Deputy  Surveyor,  363,  369,  370. 
Description,  72. 

Defective,  73. 

In  Conveyance,  245. 

Wrong  in  Patent,  136. 

Descriptive  Report,  419. 
Diagram  of  Lode,  49,  51,  71. 

Showing  Excessive  Width,  25. 

Showing  Apex,  162,  166,  169. 

Of  Official  Survey,  386. 

Dip,  171. 

Of  Deposits  or  Contacts,  158. 

Veins  Uniting  on,  142. 

Right  to  Follow,  157. 

Veins  Cut  on,  164. 

Plat  Showing,  166,  169. 

Degrees  of,  172. 

Discovery  on,  163. 
Discovery,  27. 

On  Old  Lodes,  25. 

After  Location,  32. 

Where  Made,  34. 

Methods  of,  35. 

Under  Present  Law,  27. 

In  Open  Cut,  28,  44. 

In  Tunnel,  28,  44,  46. 


512  INDEX. 

D  i  sco  ve  ry — Continued. 
Gives  Title,  29. 
When  Complete,  30. 
By  Drill  Hole,  35. 
Time  It  Holds  Claim,  35. 
On  a  Spur,  176. 
Location  Without,  315. 
Outside  of  Discovery  Shaft,  33. 
Secret  Underground,  45. 
On  Placers,  194,  195. 

Discovery  Shaft — 

And  Discovery  Distinguished,  32. 

Statute  Requiring,  25. 

Must  Be  10  Feet  Deep,  27,  41. 

Must  Show  Crevice,  42. 

Must  Be  on  Public  Domain,  39. 

On  Town  Site,  39. 

Patent  Over,  39. 

Claim  Must  Include,  40. 

Sale  of,  40. 

Time  to  Sink,  28. 

Where  Sunk,  34. 

In  Slide  or  Country,  43. 

Walls  in,  43. 

For  Each  Claim,  44. 
District  Rules,  3. 

Affecting  Labor,  7,  89. 
Ditches,  179. 

Abandonment  of,  87. 

Location  Notice,  181. 

Location  Certificate,  182. 

Do  Not  Pass  as  Appurtenances,  183. 

Condemnation   Proceedings,   185. 
Ditch  Company,  297. 
Dower,  248. 
Drainage,  178. 


INDEX.  513 


Dump,  188. 

Location  of,  210. 
For  Tailings,  211. 
For  Tunnel,  229. 

Easements,  179,  186. 
Ejectment,  314. 

Supporting  Adverse,  441. 

Proper  Court,  440. 

Certificate  of  Suit,  441. 

Form  of  Complaint,  443. 

Form  of  Answer,  445. 

Verdict  in,  447,  449. 
Eminent   Domain.      See  Condemnation. 
End  Lines — 

On  Prior  Claims,  47. 

Parallel,   160,   173. 

Converging,  161. 

Plat  Showing,  166. 

Relation  to  the  Strike,  166. 

One  Set  for  All  Veins,  166. 

Following  Lode   Beyond,   167. 
Entry,  407. 

Annual  Labor  After,  92. 

Death  of  Applicant,  428. 

After  Adverse,  450. 

Of  Area  Not  in  Dispute,  449. 
Escrow,  255. 
Estoppel,   108. 
Examination  of  Title,  273. 
Excluded  Areas,  132,  374,  388,  407. 
Extensions,  84. 

'Fault,  153. 
Feeders,  175. 
Fees— 

Of  Surveyor  General,  381. 

In  Land   Office,  403. 

Of  Secretary  of  State,  298. 

17 


514  INDEX. 

Fiduciary   Relations,  117. 

Fixtures,  266. 

Float  Ore,  Location  on,  31. 

Forcible   Dispossession,  312,  334. 

Forcible   Entry,  319. 

Foreign  Corporations,  302. 

Forfeiture,  107.      See  Abandonment. 

Parties  Essential  to,  96. 

Relocation  Before  Complete,  98,  101. 

To  Co-Owner,  107. 

Notice,  109. 

Form  of  Proof,  109. 

Of  Placers,  106. 
Forms — 

Acknowledgment — 
By   Individual,   242. 
By  Corporation,  249,  303. 
By  Attorney  in  Pact,  250. 
To  Articles  of  Incorporation,  289. 

Agreement  to  sell,  251-254. 

Amended  Location  Certificate,  119,  121. 

Annual  Labor  Affidavit,  104. 

Annual  Report  of  Corporation,  295. 

Articles  of  Incorporation,  288,  290,  297,  298. 

Assessment,  300. 

By-Laws,  291. 

Certificate  of  Stock  Paid,  294. 

Contract  to  Sell  and  to  Buy,  254. 

Designation  of  Agency,  302. 

Ditch  Incorporation,  297. 

Ditch  Location  Certificate,  182. 

Dump  Location  Notice,  229. 

Ejectment,   Complaint   and   Answer,   443-445. 

Escrow,  255. 

Forfeiture  Notices,  109,  110. 

Foreign  Corporation  Certificate,  302. 

Injunction  Notice,  331,  335. 

Lease,  258. 

Lease  and  Option,  263. 


INDEX.  515 

Forms — Continued. 

Liens,  Clerk's  Certificate  of,  279. 

Lode  Notice,  36,  38. 

Lode  Location  Certificate,  72. 

Mill  Returns,  262. 

Mill  Site  Location  Notice,  213. 

Mill  Site  Location  Certificate,  213. 

Miner's  Lien,  237. 

Notice  to  Ore  Buyers,  309. 

Notice  of  Leased  Mine,  240. 

Organization  Meeting,  291. 

Placer  Notices,  196,  197. 

Placer  Location  Certificate,  198. 

Placer  Lease,  263. 

Prospector's  Notice,  36. 

Prospecting  Contract,  270. 

Protest,  454. 

Quit  Claim  Deed,  243. 

Relocation  Certificate,  119,  121. 

Resolution  to  Assess,  300. 

Sale  Subject  to  Examination,  253. 

Surveyor's  Lien,  239. 

Title  Bond,  251. 

Tunnel  Location  Notice,  229. 

Tunnel   Location   Certificate,   227. 

Warranty  Deed,  241. 

Working  Contract  Sale,  252. 
Forms  in  Application  for  Patent — 

A.  Request  for  Official  Survey,  382. 

B.  Order  for  Survey,  383. 

C.  Preliminary  Plat,  385. 

D.  Field  Notes,  387. 

E.  Approval  of  Survey,  391. 

F.  The  Final  Plat,  391.    ' 

G.  Surveyor  General's  Approval  of  Survey  and 

Certificate  of  Improvements,  392. 

H.     Approved  Field  Notes,  392. 

I.       Surveyor    General's    Certificate    to    Tran- 
script, 393. 

K.     Notice  of  Application,  394. 

L.     Proof  of  Posting,  395. 


516  INDEX. 

Forms    in    Application    for    Patent — Continued. 

M.     Application,   396. 

N.     Abstract  of  Title,  398. 

0..     Proof  of  Citizenship,  399. 

P.     Publisher's  Contract,  402. 

Q.     Publication  Notice,  402. 

R.     Proof  of  Notice  Remaining  Posted,  405. 

8.     Proof  of  Publication,  405. 

T.     Proof  of  Sums  Paid,  40G. 

U.     Application  to  Purchase,  406. 

V.     Register's    Certificate   of   Posting,   408. 

W.     Register's  Final  Certificate  of    Entry,  409.. 

X.     Affidavit  of  Lost  Receiver's  Receipt,  410. 

Y.     Power  of  Attorney,  413. 
Mill-Site— 

Z.     Non-Mineral  Affidavit,  414. 

AA.    Affidavit  of  Use  for  Mining  Purposes,  415. 
Placer — 

BB.     Proof  of  No  Veins,  418. 

GC.     Descriptive  Report,  419. 

DD-GG.     Exhibits  to  Descriptive    Report,    420- 
421. 

Forms  in  Adverse  Claim — 

HH.     The  Adverse,  432 
JJ.     Certificate  of  Suit,  441. 
KK.     Complaint  Supporting,  443. 
I/I/.     Answer,  445. 
MM-NN.     Verdicts,  447. 

Fraud,  Patent  Obtained  by,  134. 
Sale  Induced  by,  256. 

Glossary  of  Mining  Terms,  492. 
Gold  Dust,  310. 
Group  Claims — 

Apex  Rights  of,   165. 

Annual  Labor  on,  94 

Patenting,  425. 

$500  Improvements,  426. 


INDEX.  517 

Highways,  186. 
Holidays,  438. 
Homestead,  201,  473. 

Idaho,  Location  of  Claim  in,  61,  199. 
Improvements.     See  Land  Office  Rules. 

$500  Worth,  92,  427. 

What  Counts  as,  93,  94,  427. 

By  Tunnel,  233. 

On  Mill  Site,  415. 

Completed  Pending  Application,  427. 

On  Adverse,  434. 
Indian  Reservation,  305. 
Injunction,  326. 

Against  Tailings,   209. 

Against  Ore  Buyers,  309. 
Inspection   and   Survey,   273,   336. 
Inspector  of   Mines,  340. 
Interference  of  Claims,  136. 
Internal   Revenue,  250. 
Irrigation,  185. 

Jumping  Act,  312,  334. 

Known  Lodes — 

Excluded  from  Placer,  203. 
What  Are,  203. 
Not  Recorded,  204. 
Adverse  by,  205,  425. 
Proof  of,  206. 
Width  of,  207. 

Land  Office  Rules,  344. 

Abstract  of  Title,  [Rule  42.] 
Adjoining  Claims,  Call  for,  [10.] 
Adverse  Claim,   [78-88.] 
Affidavit,  Who  May  Take,  [69.] 
Affidavit,  Out  of  District,  [70.] 


518  INDEX. 

Land  Office  Rules — Continued. 

Agricultural   and   Mineral   Contests,    [101-111.] 
Alaska,   [112,  113.] 
Annual  Labor,   [12-15,  55.] 
Application  for  Patent,  [34-57.] 

Area  and  Conflicts,  [38,  44,  149,  153.] 

Diagram  of  Claim,   [37,  161.] 

Entry,   [52.] 

Proof  of  $500  Improvements,  [25,  48-50.] 

Lost  Records,  [43.] 

Newspaper,   [45-47,  89.] 

Notice,  [46.] 

Numbering  Surveys,  [36,  72.] 

Official    Survey,    [34,    35.]     General    Provis- 
ions, [115-169.] 

Posting  Plat,  [39,  40,  51,  73.] 

Proof  of  Sums  Paid,  [52.] 

Publisher's   Contract,    [45.] 

Statement  of  Claimant,  [41.] 
Building  Stone,  [20,  114.] 
Certificates  of  No  Suit,  [76,  88.] 
Chain  of  Title  Broken,  [74,  75.] 
Citizenship,  Proof  of,  [66-70.] 
Deputy  Surveyors,  [89-98,  115-121,  128.] 
Descriptive  Report  on  Placer,  [167.] 
Errors  in  Surveys,  [162-166.] 
Fees  and  Charges,  [89-98,  120,  122.] 
Forest  Reserves,  [114.] 
Forfeiture,  [15.] 
Hearing  to   Determine  Character  of  Land,  [99- 

111.] 

Improvements,  [156-160.] 
Location,  [4-11.]' 
Lode  Claims,  Length,  [4.] 

Width,  [5.] 

Size,  [6.] 

In  Placer,  [26,  151.] 
Mill  Sites,  [61-65,  150.] 
Oil  Claims,  [21.] 
Old  Lodes,  Status  of,  [2.] 


INDEX.  519 

Land   Office   Rules — Continued. 

Placer  Claims,  Location  and  Patenting  of,  [19- 
30,  58-60.] 

Possessory  Right  by  Limitation,  [74-77.] 

Protest,   [53.] 

Railroad  Selections,  [102.] 

Record,  [13,  18.] 

Salines,   [31-33.] 

School  Lands,  [20.] 

Side  Veins,  [2,  3.] 

Stakes  and  Corners,   [10,  143-14(5.] 

Ties,  [9,  36,  135-142,  147,  158.] 

Timber,   [114.] 

Trustee,  Entry  by,  [54.] 

Tunnels,   [16-18.] 
Larceny,  311. 
Lease,  257. 

Form  of,  258,  264. 

By  Agent,  266. 

And  Option,  263. 

Assignment  of,  267. 

Miner's  Lien,  240. 

Ore  Mined  by  Trespass,  321. 

Non-Assessable  Interest  in,  267. 

Ledge,  150 

Length   of   Lode   Claim — 

Before  May  10,  1872,  17. 

At  Various  Dates,  19. 

Since  May  10,  1872,  20. 

How  Distributed,  20. 

Excessive,  21. 

License,  268. 

Of  the  United  States,  10. 
To  Construct  Ditch,  184. 

Liens,  235. 

How  Affected  by  Patent,  235. 
Miner's,  236. 

Covenant  Against  in  Lease,  260. 
Certificate  of,  279. 


520  INDEX. 

Liens — Continued. 

Surveyor's,  239. 

In  Examination  of  Title,^278. 

Limitations,   338. 
Location,  27-59. 

Definition  of,  37. 

Statutory  Requirements  of  Various  States,  59- 
67. 

Formal  Parts  of,  37. 

Of  Old  Lodes,  25. 

Of  New  Lodes,  27. 

Of  Placers,  196. 

Of  Tailings  Claim,  211. 

Diagram  of,  49,  51,  71. 

Not  Covering  Vein,  49,  148. 

Without  Discovery,  32,  315. 

Excessive,  21. 

Possession  Without,  78,  82,  315. 

One  or  Both  Parties  in  Default,  79,  81. 

Presumption  of,  318. 

Land  Office  Rules,  344. 

Without  Surveyor,  50. 

Of  Tunnel  Site,  226. 

Of  Lodes  Cut  in  Tunnel,  229. 

Across  the  Strike,  58. 

Conflicting,  247. 

Location  Certificate,  67-84. 

Statutory   Requirements,    59-67. 

Form  of  Lode,  72. 

As  Proof  of  Location,  318. 

Parol  Proof  of,  75. 

Test  of  Sufficiency,  76. 

Amended,  119,  121. 

Where  Voidable  Only,  123. 

Form  of  Ditch,  182. 

Form  of  Placer,  198. 

Form  of  Mill  Site,  213. 

Form  of  Tunnel,  227. 

In  Examining  Title,  275. 

Verification  of,  77. 


INDEX.  521 

Location   Monument,  372. 
Location    Notice — 

Statutes  Requiring,  27,  59-67. 

On  Lode,  36,  38. 

On  Ditch,  181. 

On  Placer,  196. 
Location  Stake,  37. 

Notice  on,  36,  38. 

Removal  of,  311. 
Lode,  Defined,  150. 

Length  of  Old  Claims,  17. 

Present  Length,  20. 

Width,  21-25. 

Discovery  and  Location,   25-59. 

Size  or  Value,  33. 

Uniting  on  Dip,  142. 

Wider  than  Claim,  150. 

Proof  of  Continuity,  153,  155. 

Side  Veins,  144,  145. 

"In  Place,"   151,  155. 

Test  of  Value,  152.    ' 

Record,  67. 

Diagram,  49,  51,  71. 

Interferences,  136. 

Within   Placer,   202. 

Cross,  138. 

Located  Over  Placer  or  Mill  Site,  225.      , 

Cut  in  Tunnel,   229. 

Cubic  Incidents  of,   172. 

And  Placers  Distinguished,  417. 

Group  of,  in  Patent,  425. 

Lodes,  Veins  and   Ledges,  150. 

Malicious    Mischief,   312. 
Mandatory  Writ,  334. 
Married  Women,  248,  276. 
Measure  of  Damages,  320. 
Mexican  Grant,  284. 
Mill    Returns,  262. 


522  INDEX. 

Mill   Site,  212. 

Application  for  Patent  on,  414. 

Separate   Application,    217. 

Must  Be  Non-Mineral,  215,  220. 

Location  Certificate,  213. 

Patented,  220. 

Land  Office  Rules,  358. 

Non-Mineral  Affidavit,  414. 

Statute,  Section  2337,  472. 
Mineral   Land,  Comparative  Value,  153,  215. 

Conclusiveness  of  Patent,  133. 
Mineral   Value,  152,   194. 
Miner's  Lien,  236. 

Covenant  Against,  in  Lease,  260. 
Miner's   Rights,  10. 
Miner's  Title — 

Recognition  of,  10. 

Nature  of  Estate,  12,  126. 

Mining  Claim.      See  Claim,  Possessory    Claim,  Lode. 
Mining  Districts,  3. 
Mining  Lease.     See  Lease. 
Minors,  57,  111,  313. 

Montana,  Location  of  Claim  in,  62,  199. 
Monuments,  53,  72.    See  Land  Office  Rules. 

Naturalization,  282. 

Negligence,  322. 

Nevada,  Location  of  Claim  in,  63,  200. 

New  Mexico,  Location  of  Claim  in,  64,  201. 

Newspaper,  In  Application  for  Patent,  402. 
In  Forfeiture,  108. 

Non-Contiguous  Tracts,  416. 

North  Dakota,  Location  of  Claim  in,  64,  201. 

Notice- 
Lode  Location,  36,  38. 
Placer  Location,  196. 


INDEX.  523 


Notice — Continued. 
Renewing,  37. 
Changing  Names  on,  124. 
On  Underground  Discoveries,  45. 
Injunction,  331,  335. 
Of  Forfeiture,  109. 
To  Ore  Buyer,  309. 

Oil  Land,  as  Placer,  192,  469. 
Oil  Wells,  313. 

Open  Cut,  Discovery  in,  28,  44. 
Option,  251,  263. 
Ore  Buyers,  307. 
Ore  Contracts,  306. 
Ore  Salting,  310. 
Ore  Stealing,  311. 

Oregon,  Location  of  Claim  in,  65,  201. 
Overlapping  Claims,  115,  132,  138,  141. 
Annual  Labor  on,  100. 

Partnership,  266. 
Patent,  125. 

Application   for,   382. 

Land  Office  Rules,  351. 

Not  Divest  Highway,  187. 

Lodes  Dipping  Under,  221. 

In  Examination  of  Title,  278. 

To  Assignee,  428. 

Suit  to  Cancel,  134,  338. 
Pay  Ore,  In  Discovery,  33. 
Penal  Provisions,  310. 
Philippine  Islands,  459. 
Placer,  190. 

As  a  Lode  Claim,  134. 

Appropriation  of  Water,  180. 

What  Constitutes,  192. 


524  INDEX. 

Placer — Continued. 

Location  Certificate,  198. 

Location  Notice,  196. 

Size  of,  195. 

Location  on  Surveyed  Land,  197. 

Lease  of,  263. 

Association  to  Locate,  195. 

Statutes  of  IT.  S.  and  Colorado,  190. 

Statutes  of  Other  States,  198-201. 

Lodes  Within,  202,  423,  424. 

Annual  Labor  on,  106. 

Application  for  Patent,  202,  417. 

Width  of  Lode  in,  207. 

Forfeiture  of,  106. 

What  Patent  Covers,  219. 

Reservation  of  Lodes,  223. 

Joinder  of,  in  Application,  425. 

Land  Office  Rules,  348,  357,  377. 

Application  for  Patent  on  Surveyed  Lands,  422. 
Pleading — 

Of  Suit  Brought,  315. 

Abandonment,  87. 

Forfeiture,  102. 
Possession — 

Without  Record,  78. 

During  Location  Period,  82. 

Defective  Record  Aided  by,  83. 

As  Notice,  280. 

Without  Location,  315. 

How  Proved,  317. 

In  Ejectment,  314. 
Possessory  Claim,  10,  12. 

Abondonment,  13,  85. 

Vested  Estate  and  Freehold,  12,  13. 
Power  of  Attorney,  413. 
Proof — 

Of  Citizenship,  399. 

Of  Labor,  103,  104. 

Of  Forfeiture,  108,  109. 

Of  No  Known  Lodes,  418. 


INDEX.  525 

Prospecting  Contract,  270. 
Protest,  452. 
Publication — 

To  Enforce  Forfeiture,  110. 

In  Patent  Application,  402. 

Certificate  of,  405. 

Period  of,  403. 
Public   Domain — 

Occupation   of,   10. 

Paramount  Title  in,  12. 

Segregation  of  Claims,  128. 

Quarry,  as  Placer,  193. 
Quartz,  in  Discovery,  33. 
Quit  Claim  Deed,  243. 

Real  Estate,  13. 

Dump  Is,  189. 
Receiver's  Receipt,  136,  409. 

Cancellation  of,  407. 

Affidavit  of  Loss,  410. 
Record,  67. 

Time  to  Record,  68. 

Of  Location  Notice  as  Certificate,  69. 

Definition  of,  70. 

Description  in,  72. 

Possession  Without  Record,  78,  82. 

Statute    Requiring,    68. 

Priority,  78. 
Relation — 

Doctrine  of,  97,  122,  129,  143. 

Water  Rights,   184. 
Relocation,  112. 

Upon  New  Discovery  Shaft,  34. 

Before  Year  Expires,   101. 

Of  Abandoned  Claims,  112.' 

Instead  of  Annual  Labor,  114. 

Non-Abandoned  Claims,  118. 

After  Patent  Applied  for,  115. 


526  INDEX. 

Relocation — Continued. 

By   Co-Owner,   115. 

By  the  Owners,  118. 

Form  of  Certificate,  119,  121. 

After  Loss  of  Discovery  Shaft,  120. 
Replevin,  325. 
Reservation — See  Severance. 

In  Placer  Patents,  201. 

In  Town  Site  Patents,  222. 

In  Patents  Generally,  224. 

Indian,  305. 

Military,  475. 

Government,  Right  of  Way  on,  187. 

Of  Minerals  by  Deed,  248. 
Right  of  Way,  186. 

To  Cross  Lodes,  138. 

To  Oil  Pipe  Lines,  474. 
Roads,  186. 

Rock  in  Place,  151,  155. 
Royalty,  258-261,  264,  265. 
Rules  for  Official  Survey,  371. 

Salines,  193,  350. 

Sampling  and  Smelting  Companies,  297,  307. 
Notice  to,  309. 

Scales,  False,  310. 

School   Claims,  15. 

School  Lands,  221. 

School  of  Mines,  343. 

Seepage,  Show  of  Mineral  by,  153. 

Severance,  218. 

Side  Lines — 

Departure  of  Vein  from,  146,  161,  162. 
Relation  of  Apex  to,  161. 
Side  Veins,  144,  145. 

End  Lines  Control,  166. 
Dip  Rights  of,  173. 


INDEX.  527 

Slip,  175. 

Soldiers'  Claims,  15. 

South  Dakota,  Location  of  Claim  in,  65,  201. 

Spurs,  175. 

Stakes — 

Statute  Requiring..  27. 

Center  and  Corner  Posts,  27,  49. 

On  Prior  Claim,  47,  77. 

Time  to  Set,  48. 

On  Cross  Cut  Discoveries,  45. 

Must  Cover  Apex,  49. 

Marks  on,  51. 

On  Precipitous  Ground,  55. 

Maintaining,    56. 

Overlapping,  77. 

On  Placer,  197. 

Removal  of,  311. 

Size  of,  55. 
Stamps,  250,  298. 
Statutes- 
Repealed  Acts  of  Congress,  460. 

Text  of  Acts  of  Congress,  462. 

Timber. Act,  477. 

Coal  Lands,  475. 

Placer  Act,  190,  202. 

1,500-Foot  Act,  20. 
Stock — See  Corporations. 

Paid  in  Lands,  287. 

Certificate  of  Paid  Up,  294. 
-  Assessment  of,  290,  299. 

Stockholders,  287. 
Stone,  Building,  191,  193. 
Strikes,  313. 
Sunday,  59,  438. 
Surface — 

Acreage    of,    202. 

Mining  Under  Improvements,  218. 

Severance,  218. 


528  INDEX. 

Surface — Continued. 

Separate  Ownership  of,  and  Minerals,  218. 

Right  to  Tunnel  Under,  230. 
Survey — 

For  Patent,  371,  382. 

For  Adverse,  434. 

For  Location,  50. 

With  Inspection,  336. 

On  Examination  of  Title,  278. 

Land  Office  Rules  for,  369. 

Presumed  to  Cover  Vein,  137. 

Overlapping,  138. 

Apex  Leaving,  161,  162. 

Irregular,  177. 

Surveyor's  Lien,  239. 

Surveyor  General's  Circular,  As  to  Fees,  381. 

Table  of  Cases  Cited,  479. 
Tailings,  208. 

Abandonment  of,  87. 

The  Debris  Cases,  211. 
Taxes,  234. 
Tenants  in  Common,  Non- Joinder  of,  319. 

Collusion  With  Third  Parties,  57. 

Relocation  by,  115. 

Rights  of,  in  Patent,  111. 

Lease  by,  266. 
Tide  Lands,  455,  458. 
Ties,  52,  53.  See  Land  Office  Rules. 

To  Discovery  Shaft,  72. 

On  Placer,  197. 
Timber,  312,  477. 
Time — 

To  Perfect  Location,  48. 

To  Adverse,  437. 

To  Record,  69. 

Essence  of  Contract,   252. 


INDEX.  529 

Title- 
Abstract  of,  in  Examining  Title,  274. 

Abstract  of,  in  Land  Office,  398,  434. 

After  Acquired,  277. 

Possessory,  10,  12. 

Patented,  125. 

After  Entry,  126. 

Color  of,  148. 

In  Third  Party,  318. 

In  Neither  Party,  449. 
Title  Bond,  251. 
Town   Sites,  222. 
Trails,  186. 
Tramways,  187. 
Trespass,  320. 

Rights  Initiated  by,  83,  197. 

Relocator,  no  Trespasser,  101,  113. 

By  Surface  Owner,  218. 

Not  Larceny,  311. 

Measure  of  Damages,  320. 
Tunnel  Sites,  225. 

Diverse  Ownership  in,  95. 

Discovery  in  Tunnel,  28,  44. 

Record   of,   226. 

Location  Certificate,  227. 

Location  Notice,  229. 

Abandonment  of,   232. 

Companies,  287. 

Annual  Labor  in,  233. 

Land  Office  Rules,  347. 

Utah,  Location  of  Claim  in,  66,  201. 

Variations,  176. 
Vein — See  Lode. 

Irregularity  of,  137. 
Ventilation,  313. 

Verdict,  in  Adverse  Suit,  447,  449. 
Verification,  of  Location  Certificate,  77. 


530  INDEX. 

Vertical  Planes — 

Right  to  Vein  Within,  167. 

Walls,  174. 

In  Discovery,  43. 
Warranty  Deed,  241. 

Conveys  After  Acquired  Title,  277. 
Washington,  Location  of  Claim  in,  66,  200. 
Water.     See  Ditches,  Appropriation,  Drainage. 
Weights  and   Measures,  310. 
Width  of  Lode  Claims,  21,  22. 
Witnesses,  to  Deeds,  248. 
Working  Contracts,  273. 
Wyoming — 

Location  of  Claim  in,  67,  201. 

Position  of  Discovery  Shaft,  24. 

Zone,  Mineral  Bearing,  154. 


We  desire  to  express  obligations  for  courteous 
suggestions  and  information  as  to  the  local  law  and 
custom  in  their  respective  States,  to  the  following 
attorneys:  D.  D.  Williams,  Boise,  Idaho;  Cullen, 
Day  &  Cullen,  Helena,  Montana;  Corlett  Downey, 
Laramie,  Wyoming;  Willis  B.  Herr,  Seattle,  Wash- 
ington; C.  C.  Dey,  Salt  Lake  City,  Utah;  A.  Burrows, 
Grass  Valley,  California,  and  to  Horace  F.  Clark,  of 
Washington,  D.  C.,  for  points  in  Land  Office  prac 
tice.  M.  &  DE  S. 

Denver,  April  6,  1903. 


24 

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(905 


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